Ciesielski, R (on the application of) v District Court In Kalisz, Poland

MR JUSTICE LLOYD JONES: This is an appeal by Mr Przemyslaw Ciesielski pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Riddle made on 25th January 2011 to order his extradition to Poland.

The surrender of the appellant is sought by the Polish judicial authority pursuant to two European Arrest Warrants pursuant to Part 1 of the Extradition Act 2003. Warrants were issued on 28th May 2010 and certified on 16th June 2010.

The first warrant relates to six offences. The appellant is sought for the purposes of executing sentences of imprisonment in relation to four offences, for which a total sentence of 22 months remains to be served. The appellant is further sought for the purpose of conducting a criminal prosecution in respect of two offences of fraud. If convicted, the maximum sentence for the two further offences are terms of five and eight years' imprisonment respectively. The offences are said to have been committed between 2000 and 2002. That summary is without prejudice to the consideration of the issues which have arisen at the hearing today.

The second arrest warrant relates to three offences and the appellant is sought for the purpose of conducting a criminal prosecution in respect of one offence of theft and two offences of fraud. If convicted, the maximum sentences for the offences are terms of five years and eight years' imprisonment respectively. Those offences are alleged to have been committed in 2004.

The appellant was arrested on 11th October 2010 at St Ives in Cornwall and produced for an initial hearing in the City of Westminster Court on 13th October. He was represented at the hearing. The defence sought the appellant's discharge under section 4(3) of the Act but that application was unsuccessful.

Issues were raised concerning section 20 in relation to the first warrant and section 14 in relation to the second warrant. On 3rd November, the defence applied to adjourn the hearing for legal representation, maintaining those arguments. On 24th November, the matter was again adjourned, pending legal representation. The issues remained section 20 and section 14. On 22nd December 2010, the appellant appeared unrepresented and he applied to adjourn the hearing to allow him to obtain legal representation. The adjournment was granted, but the District Judge noted that the matter must proceed on the next occasion. On 25th January 2011, the appellant again appeared unrepresented and again applied to adjourn the hearing to obtain legal representation. That application for an adjournment was refused.

The District Judge noted that the appellant had had ample opportunity to resolve his legal aid position. The matter then proceeded to the extradition hearing. The appellant gave evidence. His case was essentially that he should not be extradited because he had a young family to support in this country and a business here which he had worked hard to develop. At the end of the hearing, the judge ordered the appellant's extradition.

At the hearing below, it appears from a note of the hearing, the appellant explained that he had been living in the United Kingdom for the past seven years. He had worked and paid taxes. He lived with his family and he explained that he regretted everything which had happened in the past. His daughter had been born in the United Kingdom. He was fighting hard to keep his business going. He said that he wanted to time to organise his life and promised to return voluntarily to Poland to serve the sentence in due course. He said that if he was not allowed further time he would go bankrupt and his business would not survive. He knew he had to serve his sentence and he would do that but he wanted time to save his business.

In his ruling, District Judge Riddle said that he accepted as factually correct everything which the appellant had told him. He referred to a potential argument which had been raised at the hearing in relation to passage of time. He considered that matter and concluded that it would be neither unjust nor oppressive to return the appellant to Poland. The other matter which had been canvassed at the hearing was a right to a retrial. The judge considered that, as Poland is a signatory for the European Convention on Human Rights, it was required to comply with Article 6 and, if Mr Ciesielski could demonstrate on his return that his absence from the hearing was not voluntary, then he would have a right to a retrial.

The judge found that there were no bars to extradition and that the appellant's extradition was compatible with his rights under the European Convention on Human Rights. Accordingly he ordered his extradition.

The original grounds of appeal were drafted by the appellant himself and relate essentially to his Article 8 ground that his extradition to Poland would be a disproportionate interference with his right to family life. He explains that he had met and married his wife in this country, and that they had a daughter who was born in 2005. They started to run their own business together, a restaurant, in July 2010. In order to do that, they had taken a bank loan of over £20,000. He explains that if he were extradited his wife would have to close the business and she would have no other means to support herself and their daughter. He says that if he were extradited there would be nobody else to look after them. Therefore, he says, his extradition would be disproportionate to the private and family life which he has established in the United Kingdom and would be a breach of Article 8.

Yesterday Mr Henley, who now appears on behalf of the appellant, served his skeleton in which he seeks to advance further grounds of appeal. In addition to the Article 8 point, he makes a number of submissions and they have been developed to a certain extent this morning before me. These further grounds, which all relate to the first warrant, are, first, that it is not possible to include within the same European Arrest Warrant both accusation cases and conviction cases. He points to the distinction between the two categories of case within the structure of the Extradition Act 2003 and submits that the first warrant is defective because it appears to relate to matters in respect of which the defendant has been convicted and also to matters in respect of which he is now accused and in respect of which his return is sought so that he can stand trial. Secondly, he submits that it is not possible on the face of the warrant to identify which of the six charges are said to be conviction matters and which are said to be accusation matters. In addition to that he submits that it is not possible to relate each of the six charges to a specific decision made by the judicial authority.

A further ground which he seeks to advance now for the first time can be dealt with at this point briefly. He submits that offence four in the first warrant is not an extradition offence. The sentence imposed was one of two months and therefore the case does not fall within section 65 of the Extradition Act 2003.

Ms Nice, who appears on behalf of the judicial authority, accepts that that is correct, and does not resist the appeal on that ground in relation to charge 4 on warrant one only. Accordingly in due course I propose to allow the appeal to that extent.

So far as the other new grounds are concerned, I am entirely satisfied that it is appropriate for this court to consider those matters which bear directly on the decision made by the judge below and the lawfulness of the return of this appellant.

I turn then to Mr Henley's submission that the first warrant is defective because it includes both accusation and conviction matters. Mr Henley, in making this submission, starts with a concession that the Framework Decision does not draw a distinction between accusation and conviction matters in the same way that the 2003 Act does. Accordingly he accepts that under the Framework Decision it is perfectly permissible to include in a single warrant both conviction matters and accusation matters. However, he says that the court must proceed by reference to the statute and the statute goes beyond the requirements of the Framework Decision. In particular, he draws attention to section 2(2):

The lynchpin of his argument is the word "or" in section 2(2). He says that the warrant must contain either the statement referred to in subsection (3) or the statement referred to in subsection (5), that is the warrant must relate either to arrest for the purposes of prosecution or arrest for the purpose of being sentenced for an offence or of serving a sentence of imprisonment imposed in respect of that offence.

It is certainly correct that the statute draws this important distinction. However, I am unable to accept that section 2 imposes a requirement that an extradition warrant be issued either in respect of an accusation or a conviction matter and I am unable to accept the submission that it is not possible to contain both in the same warrant. There is nothing in the wording of subsection (2) which leads to that conclusion. The use of the word "or" simply makes clear that separate requirements exist for accusation and conviction cases and there is nothing here to suggest that separate warrants would have to be issued in respect of accusation and conviction cases.

Mr Henley has in support of his argument drawn my attention to a number of authorities: Office of King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1; Asztaslos v Hungary [2010] EWHC 237 Admin; Dabas v High Court of Justice Madrid [2007] 2 AC 31; and Caldarelli v Court of Naples [2008] 1 WLR 1724. However, I am unable to see anything in those decisions, and indeed in the particular passages to which I was referred by Mr Henley, which supports the view that it is not permissible to include both accusation and conviction matters in the same warrant. It is true that there is a dichotomy between those two categories of case and that that is reflected in the various passages to which I have been referred. None of those cases, however, was concerned directly, or indeed indirectly, with the question as to whether accusation and conviction matters may be included in the same warrant and I do not read any of the passages to which I have been referred as providing any support for Mr Henley's submission.

I come to that conclusion on the basis of the statute, but I also draw attention to the fact that Article 8 of the Framework Decision, as Mr Henley accepts, does not distinguish in the manner provided for in section 2 of the Act between accusation and conviction cases. Moreover, the pro forma warrant which is annexed to the Framework Decision contains nothing which would appear to support the view that accusation and conviction offences may not be combined in the same warrant and Mr Henley accepts that they may be.

The purpose of the Framework Decision is of course to remove complexity and potential delay in extradition procedures between the participating states. I can see nothing in the scheme which requires separate warrants to be issued in respect of accusation and conviction matters.

There can be no principled objection to both being included in the same warrant provided it is made clear which matters are accusation matters and which are conviction matters. In particular, I accept the submission of Ms Nice that not only would such an approach be an unnecessary complication in what is intended to be a simplified system but also it is difficult to see what useful purpose in terms of protection of the requested person such a requirement would provide. For these reasons, I reject the submission of Mr Henley that it is not permissible to include both accusation and conviction matters in the same warrant.

Mr Henley then goes on to submit that it is not possible on the face of the first warrant to say which matters are accusation matters and which are conviction matters and here it is necessary to set out in the body of the judgment sections B, C and E of the first warrant:

To my mind, it is entirely clear on the face of the warrant which matters relate to conviction matters and which relate to accusation matters. Box C at paragraph 1 refers to the maximum length of custodial sentence which may be imposed for offences 5 and 6. This makes clear that these are concerned with accusation matters, not conviction matters. Paragraph 2 in box C sets out the length of the custodial sentence or detention order imposed in respect of offences 1, 2, 3 and 4. On the face of the document, these can only relate to conviction matters. While I accept that legal processes in Poland are different from those in this country and that this court should be careful not to impose on a document such as this views based on our procedure, I am nevertheless of the view that it is entirely clear from this document that offences 5 and 6 are accusation matters and offences 1 to 4 inclusive are conviction matters.

Mr Henley then submits that it is not possible to link the various judicial decisions referred to in the warrant to the individual offences. Here the fourth subparagraph of box B paragraph 1 refers to a final and binding decision about temporary arrest. It seems clear to me that this refers to offences 5 and 6, which are accusation matters, whereas the other subparagraphs of paragraph 1 in box B relate to conviction matters. The fact that there is only one decision listed in paragraph 1 of box B in relation to temporary arrest is understandable when one considers that the two offences 5 and 6 are in fact linked. There is also a reference in that subparagraph to the "present case" that is consistent with these matters being ongoing.

Box B paragraph 1 in its fifth subparagraph refers to the aggregate sentence imposed by the court in Jarocin in August 2003 regarding the case number II K 81/03. It is clear from box C, paragraph 2, that the aggregate sentence was imposed in respect of offences 2 and 3. Ms Nice, on behalf of the judicial authority, accepts that that leaves the judicial decisions set out in the first three subparagraphs of box B paragraph 1 without any clear link to the individual charges to be found on the face of the document. In particular, it is not clear which of the first three judicial decisions referred to in box B paragraph 1 relates to offence 1 and which relates to offence 4.

Here it is necessary to refer to authority as to precisely what is required to be included within the European Arrest Warrant. In Sandi v Craiova Court of Romania [2009] EWHC 3079 (Admin), Hickinbottom J at paragraph 34 said this:

Approaching the matter on this basis, and considering the matter in the light of the particular facts and circumstances of this case, I am satisfied that sufficient information has been provided in relation to charge 1 to enable this appellant to know what the position of the judicial authority is and precisely what he is going back to. The warrant sets out in relation to charge 1 the conduct which constituted the offence. It refers to the statutory provision which was infringed. It sets out the sentence and identifies the court which imposed the sentence. It also provides details of the prescription date which applies in the case of this offence, which is 12th February 2019. In these circumstances, I am satisfied that sufficient information has been provided to this appellant to enable him sensibly to understand why he has been convicted and sentenced and to enable him to consider whether any bars to extradition might apply.

Before leaving this point, I should add that in a supplemental document the judicial authority has indicated that in respect of the first order referred to in subparagraph 1 of box B, that is the matter K42/03, the appellant was summoned to the hearing by post and attended that hearing. I also note that in his witness statement, dated 6th May 2011, the appellant says in respect of this offence that he admits using an accomplice's false signature and explains that he pleaded guilty to that offence. Considering these in conjunction, it is clear that that refers to the order referred to in the first subparagraph of paragraph 1 of box B and that the appellant is in no doubt as to the precise nature of the order which was made by the court on that occasion. Furthermore, it is clear that no prejudice of any sort can have been suffered by this appellant as a result of the way in which the matter is dealt with in the body of the warrant.

For these reasons, I consider that the new grounds advanced by Mr Henley at the hearing today lack any substance and fail.

I turn next to consider the Article 8 point. Here the burden of proof is on the appellant to show that extradition would be a disproportionate interference with his Article 8 rights; see R (on the application of Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 per Laws LJ at paragraph 112. The courts have made clear on a number of occasions that the threshold for successful reliance on Article 8 in this context of extradition is a high one. In Norris v Government of United States of America [2010] UKSC 9 at paragraph 82, Lord Phillips said:

Decisions of this court make clear that the fact of hardship resulting from extradition of a family member will not of itself be sufficient to satisfy this high test, and here I refer to B v Czech Republic [2011] EWHC 963 (Admin), where Silber J recently surveyed some of the recent authorities, including A v CPS on behalf of the Republic of Croatia [2010] EWCA 918 (Admin), R(C) v Circuit Court of Poznan Poland [2010] EWHC 2262 (Admin) and R (on the application of the Balog v Judicial Authority of the Slovak Republic [2009] EWHC 2567 (Admin).

In the present case, it is clear that if the appellant is extradited to Poland he and his family will suffer hardship. The District Judge accepted as truthful the evidence of Mr Ciesielski below that, if extradited, he and his wife would have to close down their business, that she would have no other means to support herself and their daughter and also that he faced the prospect of bankruptcy because of his inability to repay the bank loan. However, the hardship to which the appellant points would not in my judgement be capable of outweighing the legitimate objective of international co-operation to defeat crime through extradition arrangements. The facts in this case do not satisfy the very high test imposed in Norris.

Accordingly, for these reasons I would dismiss the appeal subject to allowing the appeal in respect of offence 4 in the first warrant.

Consequential matters?

MR HENLEY: Yes, my Lord. I will make this very brief. Clearly the section 2(2) issue is something that has never been argued before, as far as I am aware. It is in my submission an important point of public interest that any discrepancy in section 2(2) should be resolved and I would ask whether my Lord would be minded to certify a question for the Supreme Court on that particular point. I accept the other points go to more general matters which have been decided by a long line of authority, but that particular point has not. I am conscious of the time --

MR JUSTICE LLOYD JONES: You must not worry about the time.

MR HENLEY: I think I have demonstrated the dichotomy that I referred to and you referred to --

MR JUSTICE LLOYD JONES: Well, I do not want you to reargue the point, but you are asking me to certify a point of law of general public importance for the Supreme Court.

MR HENLEY: Yes.

MR JUSTICE LLOYD JONES: Ms Nice?

MS NICE: Well, my Lord, I have made it clear in my submissions that I do not think there is any ground in this point at all. I certainly do not think it is one that is appropriate for certification at this stage.

MR JUSTICE LLOYD JONES: I am not going to certify a point of law of public importance. It seems to me that it is very clear that there is no such restriction. There is no warrant for the suggested restriction in the statutory scheme, nor indeed is there anything in any of the authorities to which I have been referred to support that view.

MR HENLEY: My Lord, of course I still have 14 days in which I can reformulate a further question along those lines, so I still reserve my right to submit a written request.

MR JUSTICE LLOYD JONES: To me or --

MR HENLEY: To you.

MR JUSTICE LLOYD JONES: Yes.

MR HENLEY: Yes, it has to be you. You have to certify --

MR JUSTICE LLOYD JONES: It does, that is right. Well, you can certainly do that and I will consider it --

MR HENLEY: I am obliged. The only other consequent issue is if I could have a detailed assessment of my public funding certificate.

MR JUSTICE LLOYD JONES: Yes, you should have that. Ms Nice?

MS NICE: My Lord, simply in relation to the offence to which you have allowed the appeal, just out of an abundance of caution I wonder if you might formally order the appellant's discharge in relation to that offence under section 27(5)(a).

MR JUSTICE LLOYD JONES: 27(5)? Yes, I am allowing the appeal in respect of the fourth offence in the first warrant and therefore I order the appellant's discharge in respect of that matter.

MR HENLEY: And I think you have to quash the DJ's order on that particular point --

MR JUSTICE LLOYD JONES: And I quash his order for his extradition in respect of the fourth offence in the first warrant.

MR HENLEY: Thank you, my Lord.

MS NICE: Thank you.

MR JUSTICE LLOYD JONES: Thank you both very much.