Filipek v Lublin Provincial Court Poland

MR JUSTICE OUSELEY: An arrest warrant was issued in respect of this appellant first in April 2006. The appellant passed through the full gamut of appearing before the district judge, District Judge Purdy, after he had been arrested in May 2010. The district judge ordered his extradition in October 2010.

He appealed. The appeal was heard by Davis J on 14 February 2011 and it was dismissed. Mr Keith, who then appeared for the appellant, took what was essentially one point in a variety of ways. The box F in the warrant which deals with periods which, if applicable, would prevent extradition for an enforceable sentence, were filled in with the dates, which were July 2007, August 2007 and May 2010 in respect of the various offences. Mr Keith submitted that although there might be subsequent information, as indeed there was, which explained what the prescription period in reality was where a defendant had deliberately absented himself from Poland, that material could not be admitted. The validity of the warrant had to be judged by reference to the particulars it bore on its face. The particulars it bore on its face showed that the warrant related to a sentence which could no longer be enforced and was thus invalid.

The judge accepted submissions from Mr Sternberg, who appears for the judicial authority today as well, that the box was sufficiently particularised. It was not necessary, said Davis J, for the information provided in that box to be provided, since it was optional. He concluded that filling in box F in the way it was filled in was not necessary or essential to the validity of the warrant. Filled in the way it was did not invalidate it. The requirements in this case were satisfied and "No invalidity arises simply because unnecessary information has been filled in incorrectly under box F."

After he dismissed the appeal, the European arrest warrant was withdrawn. No particular reason for that has been vouchsafed to the CPS, although it appears that Mr Keith was told at a subsequent stage why this was so. It may not be unreasonable to infer that the Polish authorities in the end wished for extradition on a warrant which did not contain what it had already asserted to the court was an inaccuracy in relation to the prescription ofpunishment.

Be that as it may, a further EAW was issued and was certified by SOCA on 7 February 2011, seven days before the judgment of Davis J was delivered. It may have been issued in anticipation of difficulties emerging which, in the end, did not emerge before Davis J.

However, the appellant took issue with that further warrant following his arrest and appearance before, this time, District Judge Wickham at the City of Westminster Magistrates' Court. Mr Filipek, the appellant, had the advantage there again of being represented by Mr Keith who, from his previous engagements with Mr Filipek, was obviously well aware of the date issue in relation to the warrant and the possible abuse of process arguments. He had trailed abuse of process arguments in his submissions to Davis J.

The hearing was adjourned on a number of occasions, but the final substantive hearing took place on 1 June 2011. Mr Keith indicated that passage of time and abuse of process issues were no longer pursued in the light of the disclosure from the Polish judicial authority and SOCA, according to the agreed note signed by both counsel in June.

Mr Keith at the hearing indicated that the matter could proceed that day as an uncontested hearing, and no point was taken about the validity of the warrant, which again sought the appellant's extradition for offences of burglary, attempted burglary and theft. The court in the absence of any issues being raised by the requested person's counsel found the offences were extradition offences, were not barred, and that there were no other human rights or other reasons why extradition should not proceed, and she so ordered.

At that hearing, the appellant had as his solicitors Hallinan Blackburn Gittings & Nott. By 7 June when the grounds of appeal were put in, the appellant was represented by Lawrence and Co. The grounds of appeal are referred to in section 6 of the notice. It says:

There was such a document. It reads, paragraph 1:

Neither of those constitutes a ground of appeal at all. One says no more than that there is an appeal, the other says that he wishes to appeal. Section 6 also contains this:

That has been ticked. By way of confirmation, the schedule forming part of the notice says that they will follow in 14 days. I observe that that formulation is a very common formulation for at least Lawrence and Co to adopt. I emphasise it does not constitute grounds of appeal at all.

The papers were brought down to me for consideration on 10 June 2011. Because of the paucity of the documents, and in accordance with what I had said in the judgment of Kaminski & Ors v Judicial Authority Of Poland & Ors [2010] EWHC 2772 (Admin), in which Lawrence and Co appeared for at least two claimants and in relation to costs on others, I ordered that the appellant should produce within 14 days of the date of the order, that is by 24 June 2011, detailed grounds of appeal and written summary of his argument, failing which the appeal would be listed for strike out or disposal on the material available.

24 June came and went. Nothing was heard from Lawrence and Co. The appeal was, as threatened, listed for strike out or disposal on the material today. Nothing had been heard from Lawrence and Co. Today Miss Ailes on behalf of the appellant seeks an adjournment of the appeal in order to pursue an investigation into what may be, she contends, an abuse of process of the court in relation to the withdrawal of the first EAW and its replacement by the second one.

Before I turn to the lack of merit in those submissions, I wish to deal with the position adopted in response to the order which I made. I do so without at this stage holding that the notice of appeal was itself invalid. It may be invalid despite what I said in Kaminski because, as I understand it, a divisional court has heard argument in relation to what constitutes a valid notice of appeal which has to be given within seven days, and it may have made remarks about the contents of the grounds of appeal, which would mean that a document such as that put in by Lawrence and Co could not conceivably make an invalid notice of appeal a valid notice of appeal through the provision of grounds.

The court made an order which was not complied with. There was no application for an extension of time before or after noncompliance. I am told, without anything thatcould pass for an apology for the breach of the order, that a case worker at Lawrence and Co was on annual leave, and I assume that the caseload was not adequately covered. This court does not make orders for its own amusement, nor does it make these orders for them to be so disregarded by the solicitors.

It is regrettable that there has as yet been no apology and no extension of time sought for compliance. (I add that subsequently a full explanation and apology was sent to me.) Lawrence and Co need to be aware that if grounds of appeal in this form do create a valid notice of appeal, they can expect notice of appeal in that form very quickly to lead to orders of the sort that have been made here and the court will expect them to be complied with or else the matter will be listed for rapid disposal.

Miss Ailes offers by way of an inadequate excuse the suggestion that the papers werewith Hallinans and not provided in time for Lawrence and Co to provide grounds of appeal. That is untenable. If there had been an argument raised before the district judge, it would have been perfectly obvious what issues raised before the district judge the appellant wished to contest on appeal. When no issues are raised before the district judge, it is for the appellant to say what issues it is that he failed to raise he now wishes to pursue. Notice of appeal cannot be put in and it then said to be unfair if the appellant does not have a significant amount of time in which to investigate whether some point he did not raise is now a point he wishes to pursue.

Miss Ailes submits that this case should be adjourned rather than disposed of today because that would enable time for the pursuit of what might be the matters to be developed in grounds of appeal and the skeleton argument. It is too late for that sort of request. The court's processes have been abused in this case and to come in this manner to ask for an indulgence of the sort asked for is bound to meet with a dusty answer. But in any event, what has been put forward as a basis for an abuse argument which the appellant wishes to pursue is nothing short of nonsense. The new European arrest warrant, which is the one before Deputy Senior District Judge Wickham, has in it prescription of sentence dates which are 10 years beyond those that were in the European arrest warrant upheld by Davis J but subsequently withdrawn. Those dates reflect what Davis J was told, but which Mr Keith persuaded him not to examine. In paragraph 13 of the judgment, the information is described as:

The position therefore is quite clear: he has absented himself, and extended the normal period of prescription of sentence to the dates now in the European arrest warrant. It is not contended and could not be contended that the warrant is now invalid and indeed a repetition of the form of provisions would still be a valid warrant for the reasons Davis J gave.

A desire to pursue a question of whether a European arrest warrant in the form prepared before that judgment and recognising the subsequent information provided, correcting an optional extra in the warrant so that it reflects the stance that will be taken on return by the Polish authorities, cannot conceivably give rise to an argument in relation to abuse of process. Indeed, it is impossible to see what further investigation could usefully reveal about it.

There are very many reasons why an adjournment is refused, therefore. Miss Ailes accepts that on refusal of the adjournment, this appeal must be dismissed. I dismiss the appeal. It is without merit for the reasons which I have given when refusing the adjournment.