Skrzypczak v The Circuit Court In Poznan (A Polish Judicial Authority)

The Appellant is a Polish citizen.

Her extradition to Poland is sought by the Circuit Court in Poznan (‘the Respondent’) in connection with allegations of fraud and forgery over a period ending in February 2005. The European Arrest Warrant (‘EAW’) was issued by Judge Tomasz Borowczak on 10 March 2010 and certified by the Serious Organised Crime Agency on 29 July 2010. I will refer to its terms in more detail below.

The Appellant was arrested pursuant to the EAW on 6 October 2010 and produced before District Judge Riddle sitting at the City of Westminster Magistrates’ Court on the following day. No issues were raised under sections 4 or 7 of the Act. The Extradition Hearing was formally opened, but adjourned in order to enable her case to be argued fully. She was remanded on conditional bail.

The substantive Extradition Hearing took place on 2 December before District Judge Zani. The Appellant resisted extradition on the grounds that the warrant was insufficiently particularised having regard to the provisions of section 2(4)(c) and (d) and 2(6)(d) of the Extradition Act 2003. It was contended that the EAW was invalid.

Having heard oral argument from Mr Malcolm Hawkes, who appeared for the Appellant, and Mr Adam Harbinson, who then appeared for the Respondent, he reserved judgment. Judgment was handed down on 11 February 2011. The District Judge rejected the Appellant’s challenges to the EAW and ordered her extradition to Poland.

She appeals to this court against that decision pursuant to section 26 of the Act.

The relevant parts of section 2 of the Extradition Act 2003 are as follows:

(2)

A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains -

(a)

the statement referred to in subsection (3) and the information referred to in subsection (4), or

(b)

the statement referred to in subsection (5) and the information referred to in subsection (6).

(3)

The statement is one that -

(a)

the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, 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 prosecuted for the offence.

(4)

The information is -

(a)

particulars of the person’s identity;

(b)

particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;

(c)

particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

(d)

particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.

…

(6)

The information is -

(a)

particulars of the person’s identity;

(b)

particulars of the conviction;

(c)

particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;

(d)

particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(e)

particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.

The offence (and I emphasise for present purposes that the word is singular because the warrant said expressly that it related to “one offence”) was set out in the EAW in the following manner (omitting the names of particular institutions and companies), the words, of course, appearing below in translated form:

“Iwona Skrzypczak stands accused of the following offence:

Between 21 September 2004 and 5 February 2005 in Poznan, acting together and in agreement with [K] and another unidentified person, with pre-meditated intent, at short intervals of time, she caused the following financial institutions [named] to disadvantageously dispose of their property in the total amount of PLN 63,375.43, having presented certificates which had been earlier forged by herself, [K] and another unidentified person by filling out the form details, applying seals and signing the forms in place of an authorised person of [K’s] employment in [various places of employment] and having made a fraudulent representation as to the salary he purportedly received in those companies, thus misleading the employees of the above mentioned institutions, which served as credit and loan agencies, as to his ability and intention to carry out the obligations undertaken by him, on the following dates:

1.

On 21 September 2001 in Poznan she caused [Institution 1] based in Warsaw to disadvantageously dispose of its property in the amount of PLN 600.00 by making a fraudulent representation to the salary received by [K] misleading the employee who assisted in the signing of [a loan contract] as to her ability and intention to carry out the undertaken obligation.

2.

On 21 September 2004 in Poznan she caused [Institution 2] based in Warsaw to disadvantageously dispose of its property in the amount of PLN 7900.00 by presenting a certificate of [K’s] employment in [a named company] which had been earlier forged in the above described way thus misleading the employee who assisted in the signing of [a loan contract] as to her ability and intention to carry out the undertaken obligation.

3.

On 12 October 2004 in Poznan she caused [Institution 3] based in Warsaw to disadvantageously dispose of its property in the amount of PLN 15000.00 by presenting a certificate of [K’s] employment in [a named company] which had been earlier forged in the above described way thus misleading the employee who assisted in the signing of [cash credit contract…] as to her ability and intention to carry out the undertaken obligation.

4.

On 13 January 2005 in Poznan she caused [Institution 4] based in Gdansk to disadvantageously dispose of its property in the amount of PLN 6925.29 by presenting a certificate of [K’s] employment in [a named company] thus misleading the employee who assisted in the signing of [a cash credit contract…] as to her ability and intention to carry out the undertaken obligation.

5.

On 14 January 2005 in Poznan she caused [Institution 5] based in Katowce to disadvantageously dispose of its property in the amount of PLN 28678.17 by presenting a certificate of [K’s] employment in [a named company] which had been earlier forged in the above described way thus misleading the employee who assisted in the signing of [a loan credit agreement] as to her ability and intention to carry out the undertaken obligation.

6.

On 5 February 2005 in Poznan she caused [Institution 6] based in Wrotlaw to disadvantageously dispose of its property in the amount of PLN 4271.97 by presenting a certificate of [K’s] employment in [a named company] which had been earlier forged in the above described way thus misleading the employee who assisted in the signing of [a loan credit agreement for the purchase of a computer] as to her ability and intention to carry out the undertaken obligation, i.e. for an offence under Article 286(1) of the Polish Penal Code, Article 297(1) of the Polish Penal Code and Article 270(1) of the Polish Penal Code in conjunction with Article 11(2) of the Polish Penal Code in conjunction with Article 12 of the Polish Penal Code.”

The offence, said to be under “Article 286(1) of the Polish Penal Code, Article 297(1) of the Polish Penal Code and Article 270(1) of the Polish Penal Code in conjunction with Article 11(2) of the Polish Penal Code in conjunction with Article 12 of the Polish Penal Code”, was classified in the EAW as “fraud, defrauding of credit and forgery of documents”.

Article 11(2) provides that “[if] an act has features specified in two or more provisions of the penal law, the court shall sentence the perpetrator for one offence on the basis of all concurrent provisions.” That is how it is set out (in translated form) in the EAW.

Article 12 is set out (in translated form) in the EAW as follows:

“Two or more prohibited acts undertaken at short intervals with premeditated intent shall be regarded as a single continuous offence, if the subject of the assault is a personal interest, the condition for regarding multiple acts as a single offence is that they are committed against the same person.” (Emphasis added.)

At the District Judge’s request, the Requesting Judicial Authority was invited to re-translate that paragraph of the warrant. The version which was returned read as follows:

“Two or more actions, undertaken at short intervals of time and with premeditated intent, shall be considered as a single forbidden act; if the object of the forbidden actions is a personal right, the condition for considering multiple actions as a single forbidden act is that they are committed against the same person.” [Emphasis added again.]

I will deal with Mr Hawkes’ submissions about those parts of the EAW when I have described the way in which the potential sentence for “the offence” is dealt with in the EAW.

As I have indicated, “the offence” is defined in the final passage in the description of the offence set out in paragraph 8 above after the abbreviation “ie.” It suggests that it is an offence under article 286(1) of the Polish Penal Code and the other articles referred to “in conjunction” with articles 11(2) and 12.

Mr Hawkes, in his clear and cogent submissions, says that the warrant fails to meet the mandatory requirements of section 2(4)(c) for a number of reasons. It is accepted on behalf of the Respondent that if the requirements of the section are not complied with, then the EAW is invalid: see per Lord Hope of Craighead in Dabas v. High Court of Justice, Madrid [2007] 2 AC 31, at paragraph 50.

First, he submits that “the offence” appears to be a joint enterprise in which the Appellant defrauded six different banks or financial institutions to a total amount of 63,375.43 PLN although the reality is that it lists six different offences, the first taking place on 21 September 2001 which is not referred to in the narrative description at all. He draws attention to the fact that the year 2001 appears in both the Polish and the English versions of the warrant.

The District Judge took the view that reference to the year 2001 was a typographical error and that it should have read 2004. It is, of course, a matter of impression, but I respectfully agree that that seems the obvious inference to draw. The narrative description of “the offence” is that it took place between 21 September 2004 and 5 February 2005 (a period of a little over 4 months) and, given the reliance on Article 12 (which speaks of actions “at short intervals”), the conclusion of the District Judge seems to me to have been entirely justified.

Mr Myles Grandison, who appeared for the Judicial Authority before me, agreed that that was so, though submitted (strictly speaking, correctly) that whether the series of actions alleged constituted “one offence” was a matter for the Polish court and it is possible that the Polish court would take the view that even individual acts separated by 3 years could be held to be acts separated by a “short interval”. Whilst that could theoretically be so, I consider it to be somewhat far-fetched and would prefer to base my decision on the conclusion that this was a simple typographical error which the narrative description and the invocation of Article 12 confirm to be so. Indeed Mr Grandison submits that there is additional evidence of a typographical error when it is noted that the cumulative amount contained in the six allegations equates to the figure mentioned in the narrative account.

If that is correct, is the court entitled to say that the warrant (which technically does not state accurately “the time and place at which [the Appellant] is alleged to have committed the offence”) remains valid? There seems little doubt to my mind that the Appellant could not possibly be misled by the mistaken terms of the warrant and that the error is in reality immaterial.

Relying upon Saeed Aryantash v. Tribunal de Grand Instance, Lille, France [2008] EWHC 2115 (Admin), Mr Grandison submits that an immaterial error should not be permitted to invalidate what is otherwise an obviously valid warrant. He accepts that that the typographical error in Aryantash related to the date upon which the EAW was issued, a requirement which does not fall within the ambit of section 2 of the Act, but nonetheless argues that what Thomas LJ said at paragraphs 10 and 11 is capable of being applied by analogy:

“10.

Therefore there remained one point of argument. That relates to the mistake as to the date. The Senior District Judge approached the matter, if I may with respect say so, with a degree of robustness and common sense characteristic of the Senior District Judge. He examined carefully the whole of the warrant and concluded that the error was wholly immaterial, which it plainly was: this was a warrant issued at the beginning of the year and the typist had plainly made an error putting down 2007 instead of 2008. The error was therefore immaterial. Was there anything in the Act or in the Framework Decision that required a date to be stated? There is nothing, as is common ground. The judge, having concluded the error was immaterial and there had been nothing in the Act requiring a date, the conclusion was obvious and that this was a valid European Arrest Warrant and a valid warrant for the purposes of the Act.

11.

There is really no more to say about it than that I agree with the judgment of the District Judge. The error is plainly immaterial and it plainly does not affect the validity. If the court were to hold that a typographical error of this kind was in any way to affect the validity of a warrant, it would undermine significantly the whole basis upon which these instruments operate and be seriously detrimental to building mutual confidence between the judges of Member States. I would add that obviously there could be cases where an error in a date could be material or there could be circumstances, as in this case, where it was necessary to clarify the date of the letter of request. It is important that the judicial authority in this country, through the Senior District Judge, be in a proper position to contact judicial authorities comprising the judicial branch of other countries to clarify errors and see whether they are of an immaterial kind as transpired through the requests that the Senior District Judge made in relation to the international letter of request. Of course, if an error is or appears to be material, then the court would properly examine it, but a typographical error of this kind cannot in any circumstances go to the validity of the warrant….”

As I have indicated, I can see no reason why the warrant cannot be interpreted in the way in which, reading it as a whole, it was plainly intended to read since, as I have said, the error seems to me to have been wholly immaterial and not misleading.

I do not see this as a ground invalidating the warrant.

The second point that Mr Hawkes takes relates to whether Article 12 can be said to apply at all to the circumstances of the alleged offending. He submits that Article 12, as translated on one version, refers to “the subject of the assault” which cannot relate to an offence of fraud. I agree that the English word “assault” is not ordinarily associated with a fraud, but if the translation is along the lines of “wrongful act” (which, of course, an “assault” is) then the first translation makes sense and the second translation (in which the expression “forbidden actions” is used) is much nearer to the expression “wrongful act”. Fraud is one example of a “wrongful act”.

It is, I accept, possible that something has been lost in the translation and Mr Hawkes (drawing on comments made in Dudko v Russia [2010] EWHC 1125 (Admin) at paragraph 18) may have a point that the translator of the warrant – on each occasion – had little legal knowledge of the English and Polish jurisdictions and was neither a “lawyer or jurilinguist” fluent in both languages. However, in my view, a sensible meaning can be given, certainly to the second translation, that does not require any strained interpretation. It does not seem to me arguable that the EAW is unintelligible which is, in effect, what Mr Hawkes seeks to say.

Mr Grandison relied upon what Auld LJ said in Fofana v. Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin) when he said this at paragraph 39:

“Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal “pleading” vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:

“… the background to the relevant provisions made in the 2003 Act is an initiative of European law and … the proper administration of those provisions requires that fact to be borne firmly in mind. … the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme. …”

Whilst obvious unintelligibility in the formulation of an EAW could not be overlooked in the context of section 2 of the Extradition Act, where a sensible meaning can be given to the translated words, making allowance for the occasional infelicity in their choice, then the spirit of comity and co-operation referred to in that judgment demands that such a meaning is given to the terms of the warrant.

In Lubomir Balint v Municipal Court in Prague, Czech Republic [2011] EWHC 498 (Admin), where it was contended that that the warrant did not comply with the requirements of section 2, Jackson LJ, sitting as a judge of the Administrative Court, said (having reviewed the authorities) that the first question was whether the defendant’s offending conduct is described with “a reasonable degree of clarity and detail”. Furthermore, when examining “the conduct alleged in the warrant and any further information the court must not be pedantic or overly technical.” Instead, he said, “the court must make reasonable allowance for (a) the fact that methods of particularising criminal offences differ from one jurisdiction to another and (b) the fact (if it be the case) that the warrant has been translated from a foreign language into English.” I would respectfully adopt that approach. It reflects the need to take a sensible view of the parts of the EAW under scrutiny.

Mr Hawkes also submits that Article 12 provides that in order to treat multiple offences as a single continuous offence (which is what the EAW alleges against the Appellant) the target of the “assault” or “forbidden action” must be a “personal interest” or a “personal right” (whatever that may mean, he says) and the victim has to be the same in each offence. He submits that if this provision does apply to offences of fraud, then the EAW in this case shows that the victims were six different banks or other financial institutions on different occasions.

That submission depends for its validity on the proposition that there is no essential break in the words in Article 12 between the words “a single continuous offence” (in the first translation) or “a single forbidden act” (in the second translation) and the rest of the paragraph that constitutes Article 12. What the District Judge concluded, having consulted a dictionary definition of a semi-colon, was that the semi-colon in the second translation was used “to connect [two] related but independent statements or clauses”. He said this:

“The [first] statement or clause is that a number of acts can be considered as one act, in certain circumstances. The [second] is of no actual relevance as the condition for connection i.e. “a personal right” is not present in this case as the actions complained of are said to have been against financial institutions and the like and not against individuals or similar.” (Emphasis added by the District Judge.)

Those of us who have for many years tried (more often than not unsuccessfully) to adhere to the precepts of grammar and punctuation set out in ‘The Complete Plain Words’, written originally by Sir Ernest Gowers, will applaud recourse to an authoritative source on punctuation to assist the interpretation of the passage in question. However, regrettably, some caution needs to be attached to any such approach. First, there is often no universal agreement about the circumstances in which a particular punctuation mark is or is not appropriate: views differ and conventions change. Second, historically, of course, there has been a debate about the extent to which, if at all, it is appropriate to take into account punctuation marks in statutory interpretation: see, e.g., Bennion on Statutory Interpretation, 5^th ed., pp. 751-758. Third, and perhaps most importantly in the present context, what is before the English court for consideration is the translation of a legal provision of another country in its native language. It too may have conventions concerning punctuation that may or may not be mirrored in those of the English language as it is used in the UK.

I respectfully agree with the District Judge’s essential conclusion. However, I would, for my part, have said that whether a comma or a semi-colon was interposed between the first part of either translation (or whether indeed there was, as there might have been, a full stop after the first part) and that which follows, or indeed whether there was no punctuation mark at all, there is an obvious change or demarcation at that point in Article 12. The effect of Article 12 seems to me to be tolerably plain: where a number of wrongful acts of a similar nature take place “at short intervals” against legal personae other than individuals, then that series of actions can be said to be “one offence” within Article 12. Where, however, the targets or victims of the wrongful acts are different individuals whose personal interests or rights are alleged to have been affected by those acts, the acts cannot be conjoined into one offence. If the target or victim is one individual the position is different.

Having said all that, however, this is all essentially a matter of Polish law that will fall to be considered, if necessary, when the Appellant faces trial in Poland. Does the warrant set out with a reasonable degree of clarity and detail that which is alleged against her, including the time and place of the offending? Subject to one immaterial typographical error in the itemised account of the alleged offending, the answer to the question is “yes”. To the extent that the question is relevant for present purposes (and I have doubts as to whether it is), is the Judicial Authority entitled to put the various individual allegations together as one offence? Again, it seems to me that the answer is “yes”.

This leaves the final issue raised by Mr Hawkes. Relying upon Haynes v Malta [2007] EWHC 2651 (Admin), he submits that the EAW fails to state with sufficient clarity the maximum sentence for the extradition offences and that, accordingly, the warrant is invalid and should be quashed.

In Haynes one of the reasons given by the Divisional Court for rejecting the validity of the EAW was expressed (at paragraph 24) as follows:

“Then there is a further difficulty about that, which is that neither the warrant nor the further letter indicates which provision of the Code that offence falls under. Nor does the warrant tell one with sufficient clarity what is the maximum sentence for that particular offence. It does not say that the maximum sentence for the one offence which is clearly an extradition offence is nine years. It simply gives the figure of nine years for the offences of bodily harm, referring, as I have said, to three counts, although the warrant has quoted more than three offences of bodily harm and it is open to doubt whether there is a total of nine years, as the District Judge held, or whether nine years is the maximum for a single offence. It does not tell whether, if it is the latter, it is nine years for an offence under Article 214, Article 216 or Article 218. For the reasons I have already given, one does not know which of those articles is said to be engaged in relation to the one extradition offence as to which one can be satisfied. In my judgment, what is contained in the warrant does not meet the requirement of the particularity as to sentence in section 2(4)(d) of the Act. That is sufficient to invalidate the warrant.”

A similar approach was adopted in Robert Thompson v Public Prosecutor of Boulogne Sur Mer [2008] EWHC 2787 (Admin), but, as Mr Grandison has reminded me, the rationale for the potential sentence to be spelled out with clarity was said in that case to be so that “it can be seen whether it carries a sufficiently long sentence to qualify as an extradition offence and in relation to specialty.”

The EAW in this case sets out the allegations as I have set them out in paragraph 8 above, specifies how the “offence” is categorised and classified as I have indicated in paragraph 9 and then sets out Articles 11 and 12 of the Polish Penal Code, the relevant parts of which I have set out in paragraphs 10 and 11 above.

It then sets out the potential sentences applicable to the various provisions of the Code referred to after the abbreviation “i.e.” in the sixth paragraph of the individual allegations. It does so in this way. In relation to Article 270(1) it shows that anyone convicted of forgery “shall be liable to a fine, a penalty of limitation of liberty or a penalty of between 3 months and 5 years imprisonment”. In relation to Article 286(1) it shows that anyone convicted of causing another person to dispose disadvantageously of his own or someone else’s property through misleading or exploiting an error or through an inability properly to understand the actions they undertake “shall be liable to a penalty of between 6 months and 8 years imprisonment”. In relation to Article 297(1) of the Code, it shows that anyone convicted of obtaining for himself or someone else credit by way of a loan or in some other specified manner using false or forged materials “shall be liable to a penalty of between 3 months and 5 years imprisonment.”

It follows from this that the maximum sentence for which the Appellant could be liable if convicted of a single offence under Article 286(1) is 8 years imprisonment. If she was not convicted of that offence, but was convicted of one of the lesser constituent offences, she would be liable for a maximum sentence of 5 years imprisonment.

For my part, I would see this as giving “particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence” (my emphasis) set out in the EAW as is required by section 2(4)(d) and 2(6)(d). The District Judge appears to have reached the same conclusion.

For that reason, I too reject this final ground of challenge put forward by Mr Hawkes.

For the reasons I have given, in my judgment, the District Judge was correct to find that the EAW fulfilled the requirements of section 2 of the 2003 Act and was right to order extradition.

As a result, this appeal must be dismissed.

I would conclude by thanking Mr Hawkes and Mr Grandison for their excellent written and oral arguments. The Skeleton Arguments were clear and lucid, the reference to authority helpful and to the point and the overall oral argument, allowing for judicial intervention, took less than 40 minutes. It was a model of how a case of this nature should be argued.