Case No. CO/2674/2012 
Neutral Citation Number: [2012] EWHC 2931 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 
 
Date: Wednesday 3 October 2012 
 
B e f o r e:

LORD JUSTICE PITCHFORD 

MR JUSTICE FOSKETT 
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Between: 
NEWMAN 
Claimant 
v 

DISTRICT COURT OF KRAKOW ‑ POLAND 
Defendant
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Computer‑Aided Transcript of the Stenograph Notes of  
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(Official Shorthand Writers to the Court)
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Mr Julian Atlee (instructed by Lewis Green & Co) appeared on behalf of the Claimant 
Miss Katherine Tyler (instructed by Crown Prosecution Service) appeared on behalf of the Defendant 
Judgment

1.	LORD JUSTICE PITCHFORD:  This is an appeal pursuant to Section 26 of the Extradition Act 2003 against the decision of District Judge Zani at the City of Westminster Magistrates' Court on 8 March 2012 ordering the extradition of the appellant to Poland.  Poland is a category 1 territory for the purposes of the Act.  
2.	The chronology of events is of significance to the present appeal.  The appellant has a history of sexual offending.  In November 1996 he was sentenced to a three‑year supervision order for offences of indecent exposure.  In February 1998 he was sentenced to seven years' detention ‑ later reduced to five years ‑ for offences of indecent assault on a female.  After his release the appellant travelled to Poland where, within a period of ten days, on 10 March 2005, he committed a further offence of indecent assault on a female.  On 5 September 2005 the District Court in Krakow sentenced the appellant to eighteen months' imprisonment suspended for five years and ordered him to pay compensation.  That sentence became enforceable on 18 October 2005.  The appellant failed to appear and returned to the United Kingdom.  
3.	In June 2006 he committed two further offences of indecent exposure.  He also committed the offence of engaging in sexual activity in the presence of a child.  On 18 January 2007 the Crown Court in the United Kingdom sentenced the appellant to imprisonment for public protection with a minimum term of 72 days.  He was also ordered to serve an extended sentence of four years, comprising twelve months' custody and three years extended licence.  
4.	On 12 May 2010 the District Court in Krakow issued a European arrest warrant for the appellant's arrest, he being a fugitive from justice.  The warrant was executed on 1~September 2010.  The appellant was at that time still serving his sentence in the United Kingdom.  Following a number of programmes within prison, including a sexual offenders treatment programme, the appellant was released from his United Kingdom sentence by the Parole Board on or about 7 February 2011.  However he remained in custody after that time, detained under the European arrest warrant.  
5.	On 25 August 2011 the appellant appeared before the Magistrates' Court for his extradition hearing.  The hearing was adjourned to enable the appellant to advance his request to serve his Polish prison sentence in a United Kingdom prison.  On 29 September 2011 the National Offender Management Service ("NOMS") wrote to the Crown Prosecution Service indicating its agreement in principle that enforcement of the Polish sentence might take place in the United Kingdom pursuant to Article 2.1 of the Additional Protocol to the Convention of 1983 on Transfer of Sentenced Persons of 18 December 1997.  Article 2.1 provided that where the national of a party to the Convention fled the territory of another party seeking to execute a sentence imposed in that territory, the sentencing state "may request the other party to take over the execution of the sentence".  No such request was forthcoming from the Ministry of Justice in Poland, despite repeated adjournments of the extradition hearing.  
6.	On 8 March 2012 District Judge Zani gave judgment.  The district judge rejected submissions made to him under Section 20 of the Extradition Act 2003 that the appellant was convicted in absentia and had no right to a rehearing; that the failure of Poland to respond to the Protocol request was an abuse of process; that the appellant would be subject to conditions contrary to Article 3 of the European Convention on Human Rights; and that his return would constitute a disproportionate interference with his private or family life.  
7.	In grounds of appeal to the High Court the appellant advanced the following: (1) the failure of the Polish state to meet its international Treaty obligations under the Protocol and the continued enforcement of the European arrest warrant ‑ when the appellant had served his sentence in custody in the United Kingdom ‑ amounted to an abuse of the process of the United Kingdom court; (2) the failure of District Judge Zani to accede to a yet further application to adjourn was a breach of the appellant's fundamental rights under Article 6; (3) the district judge was wrong to reject the appellant's Article 8 claim made on the ground that he had, in effect, served his prison sentence in the United Kingdom.  
8.	The grounds now advanced are confined to the respondent's continued attempts to enforce the European arrest warrant in circumstances in which the appellant claims to have served his Polish sentence of imprisonment while on remand awaiting his extradition hearing and his subsequent appeal.  There have been two recent developments.  First, on 10 August 2012, some eighteen months after the appellant's release from his United Kingdom sentence on or about 7 February 2011, the appellant made an unopposed application for bail pending his appeal to this court.  He has been on unconditional bail since that date.  Secondly, on 22 September 2012 the district court judge in Krakow wrote to the Serious Organised Crime Agency consenting to the withdrawal of the European arrest warrant on condition that the court receive a certified copy of the decision of the United Kingdom court that the appellant's Polish sentence had been served within the meaning of Article 4.6 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between Member States.  
9.	Even more recently, on 2 October 2012, the district court communicated with the Serious Organised Crime Agency in the following terms:
"In response to letter of 02‑10‑2012 the Krakow District Court informs that we uphold our stand expressed in our letter from 27‑10‑2012 which means that we cannot withdraw the EAW without mentioned documents.  Only if we receive required documents we will be able to include the period of temporary custody served in UK into the term of penalty of one year and six months imposed by Krakow Regional Court and withdraw the EAW."
(We note that the reference to a letter of 27 October 2012 is plainly a misprint for 27 September 2012.)  
10.	Article 4.6, to which the district court was referring in its letter of that date, states as follows:
"The executing judicial authority may refuse to execute the European arrest warrant:
.....
6 if the EAW has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law."
It seems clear that no such undertaking had or has been given by the United Kingdom to Poland.  The appellant has merely been detained until his release to await his extradition hearing and appeal.  
11.	In the present case the United Kingdom's obligations under the Convention on the Transfer of Sentenced Persons and the Additional Protocol of 1997 were transposed into domestic law by amendments to the Repatriation of Prisoners Act 1984.  Section 4A (3) of the 1984 Act provides that transfer and responsibility arrangements apply to a person who is detained in the United Kingdom in consequence of the order of the court of another country exercising its criminal jurisdiction.  By Section 4A (5), the relevant Minister in the United Kingdom and the appropriate authority in the second country may agree to the transfer of responsibility of the detention and release of the person concerned.  When such an agreement has been reached, the United Kingdom Minister may, subject to Section 4A (7) and (8), issue a warrant providing for the transfer of responsibility.  
12.	The appellant contends that the respondent is in breach of its international obligations under the Convention and the Protocol in failing to respond to the invitation by the Ministry of Justice to make such an agreement for the transfer of responsibility.  It is submitted that this failure amounted to an abuse of the process of the City of Westminster Magistrates' Court.  It is not demonstrated to us that Poland is guilty of an abuse of the court's process.  Neither the sentencing state nor the executing state is required to consent to a transfer of responsibility.  The Convention, the Protocol and Section 4A of the 1984 Act facilitate the making of an agreement in any particular case.  They do not bind either State to an agreement.  The agreement may ‑ but not must ‑ be made on a case by case basis.  
13.	It is agreed that this court's proper approach to an application to stay extradition proceedings on the ground of abuse of process was identified in R (on Application of the United States of America) v Senior District Judge, Bow Street Magistrates' Court and Tollman [2006] EWHC 2256 (Admin).  There is a four‑stage approach: (1) the court must insist that the conduct alleged to constitute the abuse should be identified with particularity; (2) the court should then consider whether the conduct, if established, is capable of amounting to an abuse of process; (3) if it is capable of amounting to an abuse of process, the court should then consider whether there are reasonable grounds for believing that such conduct may have taken place; (4) if there are reasonable grounds, the court must be satisfied that an abuse has not occurred, otherwise extradition should be barred.  
14.	There was, it seems to us, simply no evidence before District Judge Zani or before this court either that the respondent was in breach of its obligations under the Convention and Protocol or that it was declining to make a decision under the Convention and Protocol in order to frustrate or abuse the extradition proceeding before the magistrate.  The district court plainly had an intention to enforce its sentence and it was under no obligation instead to accede to a transfer of responsibility.  We do not accept this ground.  
15.	We turn to the second ground.  It is submitted that the appellant has now served his Polish sentence while on remand in detention since 7 February 2011 or thereabouts.  
16.	Article 26 of the Council Framework Decision 2002 (2002/584/JHA) provides:
"1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed.
2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the 
surrender."
17.	We do not accept the argument that if the requested person is in custody serving a separate United Kingdom sentence and is contemporaneously detained under a European arrest warrant to await the extradition, the time spent counts for the purposes of Article 26.  In this we agree with the decisions of Mr Justice Wyn Williams at paragraph 16 of Berk v the District Court of Wroclaw [2009] EWHC 358 (Admin) and Mr Justice Blake in Rzeczkowski v Provincial Court of Warsaw, Poland [2011] EWHC 1698 (Admin).  We also agree with Mr Justice Wyn Williams that the terms of Article 26 are expressly aimed at the requesting state and not the executing state save to the extent that the executing state is under an obligation to give to the requesting state the information required, namely the period spent in detention under the execution of the arrest warrant.  
18.	At the time when the European arrest warrant was executed the sentence outstanding was one of eighteen months' custody.  At the time the issue was before the district judge in March 2012 the appellant had spent just over twelve months in custody awaiting the extradition hearing.  However by the time of his release on bail the appellant had been in detention, awaiting the extradition hearing and this appeal, for the full period of eighteen months since his release from his domestic sentence.  
19.	It is realistically conceded by Miss Tyler, on behalf of the respondent, that it would be an abuse of the process of this court and the court below to continue to seek the extradition of a person who has, in effect, served his custodial sentence in full, as a result of the application of Article 26, solely for the purpose of enabling the management decision for the discharge of the appellant to be taken in Poland.  Secondly it is conceded that it would be a disproportionate interference with the appellant's right to a private and/or family life under Article 8 to extradite the appellant for the same purpose.  Miss Tyler is unfortunately not in a position today formally to withdraw the European arrest warrant since the District Court in Krakow requires certification of the fact that the appellant has served the equivalent of his sentence of imprisonment by a court rather than by the assurance of SOCA.  It seems to us that this is a demand which requires further examination by the Krakow District Court since it would, in our judgment, be an abuse of the process of this court if the requesting state continues to seek extradition knowing, in consequence of information given under Article 26.1, that the sentence has been served.  
20.	The passage of time since District Judge Zani's decision in March 2012 inevitably means that the ground now argued on behalf of the appellant could not have succeeded before him.  In our judgment, Section 27 (2) and (4) of the 2003 Act apply to the present situation.  This court may allow the appeal because evidence is now available which was not available at the time of the extradition hearing in the court below.  Had the appellant served his Polish sentence in full by the date of the extradition hearing, for the purposes of Article 26, we have no doubt that the district judge would have discharged him since to have returned him to Poland would have constituted an unjustified interference with his Article 8 rights.  On this ground we would allow the appeal.  We would quash the order for extradition and order that the appellant be discharged.  
21.	Miss Tyler, will you undertake that a copy of our judgment is delivered to the District Court in Krakow?
22.	MISS TYLER:  Yes.
23.	LORD JUSTICE PITCHFORD:  It seems to me sensible for someone in the Serious Organised Crime Agency to speak to the relevant individual at the District Court of Krakow and to explain the nature of the hiatus which has arisen.  It would be very unfortunate if it arose again.
24.	MISS TYLER:  Yes.
25.	LORD JUSTICE PITCHFORD:  We will direct that for the purpose we have just mentioned the transcript of this judgment should be expedited.  Once I have approved the transcript a copy will be sent by e.mail to you personally.  Would you leave your e.mail address with the court before you go so it can be communicated to me? 
26.	MISS TYLER:  Yes.
27.	LORD JUSTICE PITCHFORD:  Is there anything else?
28.	MR ATLEE:  May I ask that a copy of the transcript of the judgment should also be e.mailed to me?
29.	LORD JUSTICE PITCHFORD:  Yes.  Would you leave your e.mail address with the court, Mr Atlee, so my clerk can arrange for a copy to go to both of you?
30.	MR ATLEE:  Yes.  Might I ask for the usual order in relation to costs assessment?
31.	LORD JUSTICE PITCHFORD:  Being?
32.	MR ATLEE:  I think costs assessment under the legal aid provision.
33.	LORD JUSTICE PITCHFORD:  We will make an order for a legal aid assessment in your case.
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