Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 73

HCA/2015/2161/XM

Lord Justice Clerk

Lady Paton

Lord Menzies

SUPPLEMENTARY OPINION OF THE COURT

delivered by LORD CARLOWAY, LORD JUSTICE CLERK

in

THE APPLICATION FOR LEAVE TO APPEAL

under section 26(4) of the Extradition Act 2003

by

WOJCIECH CZERWINSKI

Applicant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McCluskey; Harley & Co

Respondent: D Dickson AD; the Crown Agent (for the Lord Advocate representing the Polish Authorities)

31 July 2015

[1]        The Criminal Practice Directions Amendment No. 2, issued by the Lord Chief Justice of England and Wales, provide (para 17A) guidance in relation to extradition matters, including proportionality.  The court understands that this guidance was made with the concurrence of the Lord Justice General, although it is for judges, rather than directed to designated authorities.  The Scottish courts may have regard to them, given that concurrence, as the sheriff did in this case.

[2]        The court has been referred to a number of authorities, notably Miraszewski v Poland [2014] EWHC 4261 (Admin); HH v Deputy Prosecutor of the Italian Republic [2013]  1 AC 338; Poland v Celinski [2015] EWHC 1274; and Polczynski v Poland [2013] EWHC 4059.  These are cases which all provide persuasive dicta on matters of proportionality.  No doubt the Scottish Courts will wish to take them into account.  Although invited to analyse these cases and to produce formal guidelines based upon those dicta and other considerations, the court does not consider that this is an appropriate case in which to do so, in the absence of significant arguments or analysis of the issues in the sheriff court.

[3]        So far as this case is concerned, the guidance states that extradition would be disproportionate in the case of “minor financial offences where the sums involved are small and there is a low impact on the victim”, including, for example, “Obtaining a bank loan using a forged or falsified document”.  The present offence undoubtedly falls within this category.  However, the sheriff considered that the exception in the guidance about offences involving “significant premeditation” should apply, although she described the offence as “entirely” premeditated.  The court is unable to agree with this approach.  As most forgery or fraud must be, the offence was no doubt premeditated, but to describe it as significant, in connection with such a minor offence, is not appropriate.

[4]        Accordingly, the court will allow this appeal, hold extradition to be barred as disproportionate and discharge the appellant from the European Arrest Warrant.