Lisowski v Regional Court of Bialystok (Poland) [DC] (2024)

[2006] EWHC 3227 (Admin)

Before:

Lord Justice Keene

Mr Justice Walker

CO/8971/2006

Lisowski

(CLAIMANT)

and

Regional Court Of Bialystok (poland)

(DEFENDANT)

MS R BARNES (instructed by Hallinan Blackburn Gittings & Nott) appeared on behalf of the CLAIMANT

MR J KNOWLES (instructed by the CPS) appeared on behalf of the DEFENDANT

1

The question which arises on this appeal is whether the appellant's extradition to Poland is barred under section 11(1)(c) and section 14 of the Extradition Act 2003. Under those provisions a person is not to be extradited where it would be unjust or oppressive to do so by reason of the passage of time since the extradition offences.

2

The respondent sought the extradition of the appellant in order to prosecute him for two alleged offences of fraud. The first of these related to the registration of a purchase of a car engine in 1995. The second concerned the making of a claim under an insurance policy for damage caused by a road traffic accident.

3

The process of extradition was begun in the present case when a European Arrest Warrant ("EAW") was issued by the respondent in Poland on 13th August 2004. The EAW appears to have been translated into English on 22nd May 2006 and on that same date faxed to London. It was then certified as a Class 1 warrant by the Serious Organised Crime Agency on 7th July 2006.

4

After an oral hearing on 9th October 2006, District Judge Purdy on 27th October 2006 ordered the appellant to be extradited. His conclusions, so far as material, included the following:

(1) Given the nature of the fraud alleged, the Polish authorities conducted a proper and expeditious inquiry frustrated, if not actually obstructed, by the appellant's whereabouts being unknown or deliberately concealed from investigators.

(2) The appellant had lived and worked since 2000 in the United Kingdom. However, given that his closest relatives were in Poland, it could not be said that he would suffer oppressive consequences, or anything like, if returned to Poland beyond the routine or inevitable disruption of compulsory return for trial.

(3) There would be nothing unjust in a fraud trial of the kind alleged 11 years on. The Polish criminal justice system must be taken to have adequate safeguards to ensure a fair trial. No actual evidential difficulty had been demonstrated, merely possible speculative difficulties that might perhaps arise. This was not enough to discharge the burden of establishing the bar to extradition relied on.

5

At the hearing before the District Judge, the appellant gave evidence that he was unaware of any criminal investigation against him until he was arrested in this country pursuant to the EAW on 19th September 2006. There is no express finding by the District Judge to the contrary. Mr Knowles who appears for the respondent contends, however, that we should treat the appellant as someone who was evading justice. I shall say more about this in due course.

6

It is common ground that under sections 26 and 27 of the 2003 Act this court must consider whether the District Judge ought to have decided differently the question which was put before him as to whether the present case fell within sections 11(1)(c) and 14 of the Act. If this court concludes that he should have decided that question differently, then it must go on to consider whether if he had decided the question in the way he ought to have done, he would have been required to order the appellant's discharge.

7

It is also common ground that section 14 is similar to section 11(3)(b) of the Extradition Act 1989, which was derived from section 8(3) of the Fugitive Offenders Act 1967, and that authority in relation to these provisions remains applicable. In particular, the court should examine the matter on the basis described by Lord Diplock in the House of Lords in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 782:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circ*mstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

8

Ms Rachel Barnes, who appears on behalf of the appellant, accepts that the burden lies upon him to show, on the balance of probabilities, that it would be unjust or oppressive to extradite him by reason of passage of time. She advances a number of reasons why the District Judge ought to have decided the relevant question differently.

9

I shall start with the question whether it would be unjust to extradite the appellant. In this regard it is said to be sufficient to demonstrate a risk of prejudice in his defence by the passage of time. Reliance is placed on the judgment of Jack J, with whom Hallet LJ agreed, in Kociukow v District Court of Bialystok III Penal Division [2006] 2 AER 451. Jack J observed in that case that Lord Diplock had made the observations I identified earlier. In his judgment at paragraphs 9 and 10, Jack J referred to "a very real risk" and "a serious risk" of injustice. It seems to me that these two concepts are essentially the same. Adopting Lord Diplock's approach, the court in relation to an injustice is primarily concerned with the risk of prejudice to the accused in the conduct of the trial itself. In that context I shall refer in this judgment to the test as being whether there is a serious risk of injustice.

10

At the hearing before the District Judge, the appellant gave evidence as to what he could recall of events giving rise to the charges against him. He owned a Polonez vehicle with the registration number BIF 2518, which is identified in the EAW, and was involved in an accident with a Volvo car in 1996. There was approximately £410 worth of damage to his car, for which he claimed against the insurance company identified in the EAW. He had bought the Polonez vehicle from a person called Lupinska, named in the EAW, and bought a replacement engine from a person named Czarnowski, also named in the EAW, and had registered these events with the local authorities. He denied any wrongdoing in relation to either of these events. He said he has had no contact with Lupinska since buying the Polonez, nor with Czarnowski since buying the replacement engine. Police officers attended the scene of the crash in 1996, took a statement from him, told him that the driver of the other car had broken the speed limit, and made a full report at the police station. He has no paperwork from this period and no contact details for either Lupinska or Czarnowski, or any other possible witnesses. He did say, however, that he had instructed Polish lawyers to investigate the matter.

11

No description of the nature of the evidence against the appellant has been given by the respondent. In these circ*mstances, Ms Barnes submits that crucial witnesses are unlikely to be able to be located and if located are unlikely to be able to remember relevant events. The whereabouts of Lupinska and Czarnowski is unknown to the appellant. Even if they could be located and were able to give evidence to a Polish court, it is reasonable to assume that their memory of events 10 or 11 years ago would be significantly impaired. It is not known whether any documents that were produced by police at the time would still be in existence 10 years later, assuming that some form of written report was made. Nor is it known whether the police could identify the particular officers involved. Even if the officers could be identified and are still available, it is improbable that they would be able to remember the incident itself.

12

Mr Knowles counters that the question under section 14 is not whether it would be unjust to try the...