CO/12395/2010 
Neutral Citation Number: [2011] EWHC 284 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 2 February 2011
 
B e f o r e: 

LORD JUSTICE TOULSON
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Between: 

THE QUEEN ON THE APPLICATION OF SOBCZAK 
Claimant

v 

JUDICIAL AUTHORITY IN POLAND 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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MR J MELVIN appeared on behalf of the Claimant
MISS L MACKINNON appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE TOULSON:  This is an appeal under section 26 of the Extradition Act 2003 against an Extradition Order, made by District Judge Purdy at the City of Westminster Magistrates' Court on 22 November 2010, based on a European Arrest Warrant issued by the Regional Court in Opole Poland on 30 October 2009 and certified by the Serious Organised Crime Agency on 27 April~2010.  It is a conviction warrant.   
2.	In July 2004 the appellant was convicted of conspiracy to commit offences against property ‑‑ in particular robberies using firearms ‑‑ and a substantive offence of armed robbery committed in December 1998.  The appellant received a sentence of 4 years' imprisonment, of which the unexpired portion, according to the EAW, is a little over 2 years and 2 months.  
3.	The appellant was arrested on 22 October 2010 and first appeared before the Magistrates' Court on the same day.  At the final hearing one month later, the appellant's counsel, Mr Melvin, applied for an adjournment in order to investigate and raise human rights issues under section 21.  The application was refused.  According to a note which both parties accept as broadly accurate, Mr Melvin sought to raise arguments under Articles 2, 3, 6 and 8, but the district judge was not persuaded by them.  
4.	There is issue as to whether the notice of appeal is in time and whether I should hear this appeal.  The notice of appeal was filed with the court on 29 November 2009, ie within the 7 day period prescribed in section 26(4), but it was not served on the respondent by that date, as it ought to have been.  I will come back to that issue.
5.	In support of his appeal, Mr Melvin has this morning produced a witness statement of the appellant, in which he states that he was severely assaulted by police and prison officers on several occasions over the period of 3 months during his imprisonment before conviction.  He states: 
"In Poland, at the time when I was working as a police officer and when I was detained, there was a common policy of humiliating prisoners for the first 3 months of their detention.  The purpose was to persuade the detainee to plead guilty.  People used to think that if you didn't plead guilty for the first 3 months you would still plead not guilty in the future.  Therefore, the first 3 months were the hardest.  I am sure this has not changed."
The appellant's case is that the alleged beating began at the end of May 2002 and finished at the end of August 2002.  Thereafter, he was in custody on remand for a period of about 2 years before his trial.  There is no allegation that he was beaten during that period or after his conviction.  
6.	The appellant also seeks to rely on a statement by a co‑accused, who asserts that he too was arrested in 2002 and that he suffered humiliating and degrading treatment from prison officers during his stay in a remand prison.  The appellant also asserts that his trial was unfair for a variety of reasons, including the fact that the same judge dealt with the question of bail before the trial and acted as the trial judge.  He also alleges that the trial process was unfair in other respects; for example, he was not given proper disclosure of documents.  He appealed against his conviction but his appeal was dismissed.  He attempted to appeal to the Polish Supreme Court but his attempt failed.
7.	Section 27 of the Act provides that this court may allow an appeal against an Extradition Order only if, among other things, the conditions in subsection (3) or (4) are satisfied.  In this case subsection (4) is the relevant subsection.  Section 27(4) provides: 
"The conditions are that (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge."
8.	I accept that the issues being raised on the appeal are issues which the appellant attempted to raise before the district judge, but at that stage he had no evidence to support them.  The question arises whether the evidence now sought to be introduced is permissible, given the provision of section 27(4) that new evidence should only be allowed if it was not available at the extradition hearing.  In Fenyvesi [2009] EWHC 231 (Admin) Sir Anthony May, giving the judgment of the court, said at paragraph 32: 
"In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained."
The evidence in the appellant's witness statement is evidence of matters within his own knowledge and could have been given by him at the hearing before the district judge.  The court in Fenyvesi recognised that there may occasionally be cases in which, in order to avoid what would otherwise be a breach of the Human Rights Convention, fresh evidence might be admitted which a strict application of the section would not permit, but the judgment makes it clear that such occasions would be rare.  
9.	I can see no basis on which it can be said that this is a case where respect for human rights requires that this court should entertain this new evidence at this stage.  In forming that view I have considered the nature of the evidence itself.  Far from falling into the exceptional category recognised in Fenyvesi, if the evidenec had been adduced before the district judge I cannot see that it would have made a difference to his conclusion.  
10.	As to the Article 3 point, the thrust of the appellant's own evidence is that he was the victim of a system by which remand prisoners would be ill‑treated in their first 3 months in order to try to obtain confessions of guilt.  He says that this happened in his case, and after that he was unmolested for 2 years before trial.  I do not see a basis in that evidence for him to have a well founded fear of Article 3 ill‑treatment, even if his statement is taken at face value.  In any event, it is well established that parties to the Convention under which European Arrest Warrants are issued operate on a mutual basis of trust and that it is properly to be assumed by a state receiving a request for extradition that the requesting state will fulfil its obligations under the Human Rights Convention.  To rebut such a presumption requires strong and cogent evidence of a kind which this case falls far short of meeting.  
11.	I accept that the statement of the appellant's co‑accused may not have been available at the time of the hearing before the district judge but that is, on its own, of little value to the appellant.  It is, at best, evidence strengthening the appellant's evidence of a practice which he says existed of ill‑treating remand prisoners in their early weeks or months of custody.
12.	As to the allegation that the appellant did not receive a fair trial, and therefore the breach that he has already suffered would be compounded by returning him to complete the rest of his sentence, Mr Melvin relied on the judgment of the Strasbourg Court in Soering v United Kingdom (1989) 11 EHRR 439 at paragraph 113: 
"The right to a fair trial in criminal proceedings as embodied in article 6 holds a prominent place in a democratic society (see, inter alia the Colozza judgment of 12 February 1985, series A number 89, page 16, paragraph 32).  The court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered, or risks suffering, a flagrant denial of a fair trial in the requesting country.  However, the facts of the present case do not disclose such a risk."
That was not a case which involved a European Arrest Warrant.  It was a case where the UK government was proposing to extradite the appellant to the United States to face trial on charges of murder in the state of Virginia, for which the prosecuting authority had indicated that it intended to seek the death penalty if he were convicted.  The Strasbourg Court held that his extradition would involve a breach of Article 3.  The court dealt, therefore, very shortly with the Article 6 complaint, which was based on the unavailability to the appellant of legal aid in Virginia.  
13.	It is a far cry from that decision to argue that it is the duty of the requested state considering an EAW to entertain allegations about the fairness of the trial process in the requesting state.  The framework of the Convention is built on mutual trust that states who are party to it will fulfil their own Convention responsibilities to ensure that a defendant is treated in a way compatible with Article 6.  It is no longer any part of the function of the requested state to investigate whether there is a sufficient case on which to prosecute the person concerned, in cases of an accusation warrant.  It would be equally inconsistent with the framework of the Convention if it were for the requested state to investigate the fairness of a conviction, in the case of a conviction warrant.  Those are matters for the requesting state.  In this case, the matter was considered at a appellate level.  Ultimately, of course, a citizen aggrieved by the trial process in the courts of a country subscribing to the European Convention can bring a complaint to the Strasbourg Court.
14.	My conclusion on this is reinforced by the decision in Symeou [2009] EWHC 897 (Admin).  In that case the defendant sought to challenge an accusation warrant on the basis that there had been abuse on the part of the requesting state in the investigation of the case.  Ouseley J, giving the judgment of the court, said: 
"34) The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial. 
35)  The reason for the distinction lies in the respective functions of the courts of the requested and the requesting state in the EAW framework.  The former are entitled to ensure that their duties and the functions under the Extradition Act 2003 Part 1 are not being abused; it is the exclusive function of the latter to try the issues relevant to the guilt or otherwise of the individual.  This necessarily includes deciding what evidence is admissible and what weight should be given to particular pieces of evidence, having regard to the way in which an investigation was carried out.  It is for the trial court in the requesting state to find the facts about how statements were obtained which may go to admissibility or weight, both of which are matters for the court conducting the trial.  It is the function of that court to decide whether evidence was improperly obtained, and if so what the consequences for the trial are.  It is for the trial court to decide whether its own procedures have been breached."
By similar reasoning, in cases where the defendant asserts that his conviction was unsafe, it is for the appellate court of the requesting state to examine the merits of the complaint.  Were it not so, the consequences would make the scheme potentially unworkable in a large number of cases of conviction warrants.  The present case is an illustration.  
15.	The appellant's statement contains assertions that the trial process was flawed in various ways.  If those were proper matters for the district judge at City of Westminster Magistrates' Court to have investigated, he would have had to have taken on a role akin to that of the Court of Appeal Criminal Division in this country in reviewing the safety of his conviction in Poland, with production (and translation) of all relevant papers and submissions from both parties.  Any such procedure would be wholly inappropriate.
16.	I return to the question of the notice of appeal being allegedly out of time because it was not served in time on the respondent.  If I had been persuaded that the appeal was otherwise soundly based I would have been disposed to grant any necessary extension of time, bearing in mind that the notice of appeal was served on the court within the prescribed period.  But that is not the case.  
17.	For the reasons which I have given, this appeal has no merit and is dismissed.
18.	Thank you very much.
19.	MR MELVIN:  My Lord, I am instructed to request leave to appeal.  I understand that leave has to be on a point of law or something that is of general public importance and it obviously has to be agreed by the High Court for leave to appeal to be granted.  The point that I would like to ‑‑ 
20.	LORD JUSTICE TOULSON:  This is, where (inaudible). 
21.	MR MELVIN:  I am sorry? 
22.	LORD JUSTICE TOULSON:  Where does the appeal go to? 
23.	MR MELVIN:  Well, it would have been of course the House of Lords ‑‑ 
24.	LORD JUSTICE TOULSON:  It is not the Court of Appeal?  Because this is the Administrative Court.
25.	MR MELVIN:  Yes.
26.	LORD JUSTICE TOULSON:  Does the appeal go to the Court of Appeal or the Supreme Court? 
27.	MR MELVIN:  It would go to the Supreme Court is my view of where it would go.
28.	LORD JUSTICE TOULSON:  Yes.
29.	MR MELVIN:  On the Article 6 point and the ‑‑ and I say that it is a point of public importance as to when under Article 6, if there is a prima facie issue raised as to an unfair trial, the requested state may have to make endeavours to investigate whether or not the trial was fair or not.
30.	LORD JUSTICE TOULSON:  Yes.  Thank you very much.  
31.	I do not think it would be right to grant leave.
32.	Thank you very much.