eutral Citation Number: [2015] EWHC 1908 (Admin)
Case No: CO/1170/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 7th July 2015

Before :

LORD JUSTICE AIKENS
MR JUSTICE CRANSTON
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Between :

	WIESLAW KAZIMIERZ LEZON	Appellant	
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	REGIONAL COURT IN TARNOW, POLAND	Respondent	
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 (Transcript of the Handed Down Judgment of
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Manjit Gill QC and Andrew Zalewski (instructed by Guney, Clark & Ryan) for the Appellant
James Stansfeld (instructed by CPS) for the Respondent

Hearing dates: 16/06/2015
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Judgment
Lord Justice Aikens : 

1.	This is the judgment of the court to which both of us have contributed. 
The Facts
2.	The appellant is the subject of a European Arrest Warrant (“EAW”) issued on 7 April 2014 by the Regional Court of Tarnow,  Poland,  requesting his surrender to Poland in order that he serve two sentences of 18 months each for offences described in the EAW as “fraud”.  The offences occurred in 2001 and 2002.  The first sentence relates to two offences.  The appellant took down payments of PLN 9000 and PLN 6000 in respect of two cars he was to sell to two complainants.   The sales did not take place but the appellant kept the down payments.   The appellant was convicted after a trial in his presence and the sentence of imprisonment was imposed on 28 October 2002,  but it was conditionally suspended.  The sentence was later activated when the appellant failed to comply with conditions at a hearing at which he was also present.  An appeal against the activation of the sentence was rejected.  The second sentence of 18 months imprisonment,  which was imposed on 23 September 2003 after a trial in the appellant’s presence,   relates to five offences of fraud against one person.   The appellant took advantage of that person’s disability,  gullibility and social exclusion to persuade him to act as a guarantor in respect of loans and payment for property bought by the appellant.   He did not repay the loans or pay the price of the property sold to him.  This caused loss to the hapless guarantor.  The sentence of 18 months imposed in this case was immediate and was not suspended. 
3.	Up until 29 April 2005,  the appellant made attempts to appeal both the sentences and to obtain their suspension.  During this time the appellant was not permitted to leave Poland.    However,  on 28 May 2005 the appellant did leave Poland and travelled to Italy.   On 18 August 2005 and again on 12 October 2005,  the Regional Court in Tarnow received information from the police that the appellant was in the UK.     On 10 October 2005 a national search warrant was issued in Poland in relation to the second sentence (imposed in September 2003) and a national search warrant was issued in relation to the first sentence on 24 October 2005.   On 28 March 2006 a request was made to the Regional Court at Tarnow to issue an EAW and it did so on 4 April 2006.    This EAW never seems to have been progressed,  however.    No explanation for the failure to act on this first EAW has ever been given by the Polish judicial authorities. 
4.	In September 2006 the appellant’s wife travelled to the UK and the appellant joined her from Italy in October 2006.     There was no further action by the Polish authorities until information about the appellant’s current address in the UK was passed to the Regional Court at Tarnow on 12 March 2014.  The court forwarded that information to the National Crime Agency in the UK.  Then on 7 April 2014 the current EAW was issued by Judge Jacek Banja.  This EAW replaced that of 4 April 2006.   It is what is commonly called a “conviction” EAW.  The seven offences to which the warrant relates are set out in Box E.  The total amount of money involved is 23,697 zlotys which equals about £4,740 at the current rate of exchange.  The list of Framework Offences is ticked at the box marked “fraud”.    
5.	The current EAW was certified by the NCA on 9 September 2014.    The appellant was arrested on 20 November 2014 and he was granted conditional bail on 28 November 2014.     At various dates in January 2015,  that is after his arrest on the EAW and whilst awaiting the main extradition hearing which took place on 11 February 2015,  the appellant paid the compensation that the Tarnow Court had ordered that the appellant must pay to his victims.   
The extradition hearing before District Judge Margot Coleman (“the DJ”)
6.	Poland has been designated a Category 1 territory for the purposes of Part 1 of the Extradition Act 2003 (“the EA”),  so that Part 1 of the EA applied to the extradition hearing before the DJ and applies to this appeal.  Before the DJ the appellant contested his extradition on the ground that his surrender would be in breach of two of his rights under the European Convention on Human Rights (“ECHR”).   They were his Article 6 rights to a fair trial and his Article 8 right to family life.  The appellant argued,  therefore,  that his extradition was barred by virtue of sections 11 and 21(1) of the EA.   The main extradition hearing took place on 11 February 2015 and the appellant gave oral evidence.    The DJ reserved judgment.  She handed down her decision and reasons on 5 March 2015.  
7.	The Article 6 argument before the DJ was that a prosecutor,  Mr Brzezinski,  who worked in the area in which the appellant’s trials were conducted, “somehow influenced the outcome of [the appellant’s] trials” to use the DJ’s phraseology.   The DJ recorded that Mr Brzezinski was found guilty of accepting bribes from the appellant in the period 1993 to 2000 and that he was also found guilty of other charges.  He was sentenced to a total of 18 months imprisonment conditionally suspended for 3 years and dismissed from his official position.    However, the DJ concluded,  on the evidence before her,  that there was nothing to suggest that Mr Brzezinski had had anything at all to do with the appellant’s files or his trials.   Mr Brzezinski had simply worked in the same area and there was no evidence that he had influenced the outcomes of the trials in any way.  The DJ concluded that the Article 6 argument was “misconceived”.  
8.	On the Article 8 issue,  the DJ referred to the well-known leading cases of Norris (No 2) [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic,  Genoa [2013] 1 AC 338  and summarised her task as being “to consider whether on the particular facts of this requested person’s circumstances,  the interference with his rights to a family life would be outweighed by the public interest in extradition.   I have to do a balancing exercise”.   The DJ concluded that the appellant was a fugitive who had left his five children in Poland when he fled to Italy and then the UK.   The DJ identified the factors in favour of extradition and those against and concluded that this was not one of those “rare cases where the impact of extradition on this requested person and his family members would be so severe as to outweigh the public interest in extradition”.   
9.	The DJ therefore ordered that the appellant be extradited to Poland.  
The arguments on the appeal
10.	On behalf of the appellant,  Mr Manjit Gill QC raised two main arguments.   First,  he submitted that to extradite the appellant would be contrary to his Article 6 rights.     Thirdly,  extradition would be contrary to the appellant’s Article 8 rights.   
11.	In support of the first argument,  Mr Gill emphasised that the trials of the appellant were presided over by an “assessor”, who was not a full-time independent judge with security of tenure,  a fact which is not in dispute.   Mr Gill recognised that Foskett J had held in  Powierza v District Court,  Warszawa,  Poland [2013] EWHC 36 (Admin) at [41] that the fact that a trial in Poland was before a tribunal presided over by an “assessor” was not sufficient to make the trial process a “flagrant denial of justice”,  so as to bar extradition on Article 6 grounds.   However,  Mr Gill submitted that the facts in this case went further because of the presence of Mr Brzezinski.  Although Mr Gill accepted that Mr Brzezinski was not the prosecutor for the purposes of the two trials of the appellant at the Tarnow District Court,  nor did he prosecute the appellant at the time of the appeals,  Mr Brzezinski had taken steps which may have influenced the appeal process.   Mr Gill relied on the fact that when Mr Brzezinski was a prosecutor in Tarnow District Court,  he used one of the fax machines in the Regional Prosecutor’s Office in Tarnow to send letters to the Consulate General of the USA in Krakow requesting US officials to take steps to prevent the appellant and his wife from obtaining visas to enter the USA.  The letters bore the official seal of Mr Brzezinski as well as his signature.   In Mr Gill’s submission this was a continuation of a campaign by Mr Brzezinski against the appellant which had started in 1993 when Mr Brzezinski had ordered a search of the appellant’s home,   had drafted an indictment against him and conducted a case against the appellant.  These acts were all part of the case against Mr Brzezinski which ended in his conviction in 2010.  
12.	Mr Gill accepted that there was no evidence that any “assessor” at the trials of the appellant had been influenced by a corrupt prosecutor,  but he submitted that there was enough for there to be a “cause for concern”.   At the appeal stage,   when Mr Brzezinski was the Regional State Prosecutor in the Tarnow District,  Mr Gill submitted that there was a “real risk” of interference by him of the judges on the appeal so that the process of appeal was tainted.  The DJ erred in not making further investigations of the Requesting Court about the facts.   
13.	Mr Gill made two further points in relation to the Article 6 argument.  First,  as we understood it,  he challenged an application of the test,  established in Soering v United Kingdom (1989) 11 EHRR 439 at [113] that,  in an extradition case,  the fugitive has to establish that he “has suffered or risks suffering a flagrant denial of a fair trial in the requesting country”.   Mr Gill submitted that it is not appropriate to apply a test of such rigour in the case of a citizen of the EU whose extradition is sought by another EU Member State and he argued that the domestic Article 6 test should apply.  He relied on statements made in the Opinion of Advocate General Sharpston in Ministerul Public-Parchetul de pe langa Curtea de Apel Constanta v Ciprian vasile Radu,  reported as Criminal Proceedings against Radu [2013] QB 1031 which,  in his submission,  criticised the “flagrant denial” test as applied by the European Court of Human Rights (“ECtHR”) in relation to Article 6.  At the least, he submitted,  the same “flagrant denial” test could not be applied to Article 47 of the EU Charter of Fundamental Rights and Freedoms (“the Charter”),  to which reference is made in the Council Framework Decision 2002/584/JHA of 13 June 2002,  (“the FD”) which is the origin of the EA.   Mr Gill referred us in particular to paras 82-89 of the Advocate General’s Opinion.    Secondly,   Mr Gill submitted that,  as a matter of public policy,  the English court will refuse to give effect to a foreign judgment (in criminal as well as civil matters) where the judgment was obtained in breach of Article 6 of the ECHR.    As we understood it,  Mr Gill’s argument was that it was therefore an abuse of the process of the English court to attempt to “enforce” the sentences imposed by the Polish court in the appellant’s case because of the risk that they might have been obtained in breach of Article 6.   
14.	On the Article 8 issue,  Mr Gill submitted that the DJ failed to take into account at all two highly relevant matters:  first,  the fact that the appellant had assisted the authorities  in relation to the case against Mr Brzezinski and,  secondly,  that there was no explanation for the delay between the issue of the first EAW in 2006 and execution of the current EAW in 2014.  
15.	Mr James Stansfeld,  for the JA,  submitted that,  upon the correct analysis,  the extradition of the appellant would only be barred if there had been a “flagrantly unfair trial” process of the appellant resulting in the sentences imposed and the consequence of extradition would be the risk of being imprisoned for a substantial period of time.  The relevant “real risk” was therefore that of a breach of Article 5,  viz.  unlawful detention,  if it were to be imposed after a flagrantly unfair trial process.  He referred us to the judgment of the ECtHR in Othman v the United Kingdom [2012] 55 EHRR 1 at [233],  which analysis was adopted by this court in Elashmawy v Italy [2015] EWHC 28 (Admin) at [38].   Mr Stansfeld submitted,  however,  that there was no evidence of any possible breach of Article 6 at any stage of the process against the appellant. The fact that an “assessor” had either assisted at or presided over the appellant’s two trials was not,  of itself,  a violation of Article 6:  see Wisniewski v Poland [2012] EWHC 3040 (Admin);  Powierza v District Court in Warszawa [2013] EWHC 36 (Admin).  He also pointed out that the appellant had appealed the convictions in both cases and that the appeals had been presided over by Circuit Judges,  about whose position or integrity there could be no argument.  There was,  he submitted,  no evidence that Mr Brzezinski had any influence on the trial or appeal process at any stage. Therefore,  on the facts of these cases,  the DJ was correct to conclude that there was no evidence to suggest that there had been any breach of Article 6.   
16.	In relation to the test to be applied,  Mr Stansfeld submitted that Othman confirmed the test of a “flagrantly unfair trial” or a “flagrant denial of justice”:  see [233] and [258]-[261].     Although the court did not deal specifically with the test to be applied where the risk of a “flagrant breach” of Article 5 if extradition was based on a past  “flagrant breach” of Article 6,  he submitted that it was clear that there was a very high threshold.   
17.	Mr Stansfeld submitted that the appellant could not gain any additional benefit from relying on Article 47 of the Charter.  First, the EA did not provide that a breach of the Charter could be a bar to extradition in a Part 1 case.   Secondly,   even assuming a breach of the Charter could found a bar to extradition at all,  the standard adopted by the Court of Justice of the European Union (“CJEU”)  was no different from that adopted by the ECtHR in respect to Articles 5 and 6: because the CJEU has stated that,  in respect of Article 47 rights,  it places a special significance on the jurisprudence of the ECtHR in that area:  see eg Ordre des barreaux francophones et germanophones y otros [2007] ECR 1-5305 para 31.    He noted that in Radu,  the judgment of the Court of Justice of the European Union (“CJEU”) concentrated on the effect of the FD;  it did not comment on Advocate-General Sharpston’s opinion in relation to the test for deciding when an extradition would be in breach of Article 6 of the ECHR or Article 47 of the Charter.    Mr Stansfeld also drew our attention to the analysis of Lord Mance in his judgment in Assange v Swedish Prosecution Authority [2012] 2 AC 471 at [199] – [200] in which he demonstrated that the FD itself is not a part of English law.  However,  Mr Stansfeld accepted that,   since 1 December 2014,  the UK is bound by decisions of the CJEU in respect of the interpretation of its terms and so he also accepted that the EA itself must be interpreted in a manner consistent with both the FD and the Charter,  but neither the FD nor the Charter have any direct effect to bar the appellant’s extradition.  
18.	In relation to the Article 8 issue,  Mr Stansfeld submitted that,  as a result of the recent three person Divisional Court decision in Celinski and others v Poland and others [2015] EWHC 1274 (Admin),  this court had to ask a single question:  was the DJ’s decision “wrong”?   The DJ had drawn up a balance sheet of factors on the side of extradition and against it (as suggested in the subsequent Celinski decision) and she had taken into account all relevant factors.  Delay in this case was not a relevant factor as the appellant had been a fugitive and there was no evidence that the Polish authorities had been dilatory in seeking his return.    The further information supplied by the JA on 22 January 2015 showed that the original EAW had been issued promptly and that the reason for it not being executed was that the exact whereabouts of the appellant in the UK was unknown.  
19.	We will call the first ground of appeal compendiously the “unjust trial process” ground and the second one “the Article 8” ground and we will deal with them in that order.  
The  “unjust trial process” ground. 
20.	The essence of the appellant’s complaint under this ground is that the trial and appeal process were not fair and just because of a combination of the non-independent “assessors”  being present as judges in the trials coupled with the fact that Mr Brzezinski was a prosecutor in the area during the trials and was the State Regional prosecutor in the area at the time of the appeal.     If Mr Gill could establish that the trial and appeal process was “flagrantly unfair” and that had resulted in the appellant’s conviction and sentence,  then his extradition to serve the sentence imposed after that “flagrantly unfair” process could amount to a “flagrant breach” of the appellant’s Article 5 right not to be unlawfully detained.    The detention of a person after a trial process that was in “flagrant breach” of Article 6 could not be “lawful detention of a person after conviction by a competent court” within Article 5(a) of the ECHR.   All this must follow from what the ECtHR stated in Othman v UK [2012] 55 EHRR at [233]:  
“A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial”.  
21.	In R (Ullah) v Special Adjudicator [2004] 2 AC 323, the House of Lords stated that a person who relies on either Article 6 or Article 5  as a bar to extradition has to establish a strong case.   Lords Bingham,  Steyn and Carswell all emphasised the “high threshold test” that had to be satisfied and that “flagrant” constituted a complete denial of the right to a fair trial or process:  see [24],  [50] and [69] respectively.   We are bound by that decision and the principles it establishes. 
22.	Because the trial and appeal process has already occurred, it constitutes past fact.  Thus the question of whether it was “flagrantly unfair” is susceptible of proof.   In our view,  in a situation such as the present,  it is for the appellant to establish,  on a balance of probabilities,  that the process of which he complains had,  in fact,  been “flagrantly unfair”.   This accords with long –established general principle.   If that is established,  then it would follow that,  upon extradition,  there must be “substantial grounds” for concluding that there would be a “real risk” that the requested person would be detained in breach of his Article 5 rights, because the basis of that detention would have been a “flagrantly unfair” trial and appeal process.  Therefore,  if the facts are established and satisfy the high threshold test,  we accept that the appellant’s extradition would be barred because it would amount to an infringement of his Convention rights and so be contrary to section 21 of the EA.   
23.	In Urban v Poland [2010] ECHR 1903,  the ECtHR held that the use of “judicial assessors” in courts in Poland was contrary to Article 6 because,  effectively,  those assessors did not have security of tenure.   The ECtHR decision followed that of the Polish Constitutional Court of 24 October 2007 which held that a court in which an “assessor” was a part of the judicial element violated the constitutional principle of the need for an independent judiciary.   Assessors have not been used in the Polish court system since 2009.     In two decisions of the Administrative Court since Urban,  it has been held that,  in the circumstances of those cases,  the use of “assessors” did not constitute a “flagrant breach” of Article 6 so that that fact would not bar extradition under section 21 of the EA in those cases.   See:  Wisniewski v Regional Court in Elbag,  Poland [2012] EWHC 3040 (Admin) and Powierza v District Court,  Warzawa,  Poland [2013] EWHC 36 (Admin).    Although Mr Gill challenged those decisions,  we think that they follow well established principles and so we should follow them.  
24.	In this case even if,  contrary to our view,  it might be arguable that the use of assessors in the appellant’s trials in 2002 and 2003 constituted a “flagrant breach” of Article 6,  that would not assist the appellant.  This is because he appealed both trial decisions and the appeals were before Circuit Judges with security of tenure.    Mr Gill submitted that [54] of Urban v Poland  is authority for the proposition that such a defect in the trial process could not be cured on appeal.   We do not read the paragraph in that way.  In any event,  any defect,  whether at the trial stage or on appeal,  does not pass the “flagrant breach” test.  
25.	Therefore,  the only possible argument that can be advanced in support of the submission that there has been a “flagrant breach” of Article 6 of the trial and appeal process concerns the effect,  if any,  that Mr Brzezinski might have had on the process.    It is evident that when Mr Brzezinski was a prosecutor in the Regional Prosecutor’s office in Tarnow District in 2001,  he  did attempt to interfere with the grant of a visa or passport for the appellant and his wife, by “officially” writing to the US Consulate,  the Presdient judg efo the Dabrowa Tarnowska Court (where the appellant was tried) and the investigating judge then considering the second case against the appellant. (The court in 2010 records that the latter two recipients thought the letter was from a private person).      However,  there is no evidence that Mr Brzezinski had any influence or effect whatsoever on the trials or appeals of the appellant.    The records of events in 1993 and 1995 to which Mr Gill referred us have nothing to do with the appellant’s trials and appeals.  There is no evidence that Mr Brzezinski had any relevant connection with the judges in the appellant’s trials or appeals.  There is no evidence even to give rise to a “cause for concern” such as should have required the DJ to make further investigations.   The opinion of Ewa Draga-Buchta dated 20 May 2015 which  the appellant sought to adduce on this appeal emphasised the prominent role that prosecutors play in Polish criminal proceedings.  On the facts of this case it is certainly not “decisive” on this ground and so is not to be received under the principles established in the Fenyvesi case [2009]  EWHC 231 (Admin).    
26.	Accordingly,  on the facts concerning this ground,  we agree with the conclusion of the DJ,  who said:  
“There is not any evidence at all that the convicted Mr Brzezinski had anything at all to do with the [appellant’s] files or trials.  He simply worked in the same area.  There is no evidence that he influenced the outcomes in any way.  The [appellant] pleaded not guilty and had legal advice and representation.  The fact that he chose not to give evidence does clearly not taint the trial process in any way.  The [appellant] appealed each decision”.
27.	There is therefore no factual basis on which Mr Gill can found his arguments based on the statements in Advocate General Sharpston’s opinion in Criminal Proceedings against  Radu [2013] QB 1031 concerning the test to be adopted in relation to Article 6 or Article 47 of the Charter.   Accordingly,  we also do not need to deal with the arguments about the possible relevance of Article 47 of the Charter to extradition proceedings under Part 1 of the EA.   It is sufficient to say that we see great force in the argument of Mr Stansfeld that the Charter is irrelevant to extradition proceedings under Part 1 of the EA,  for the reasons he advanced.    There is also no factual basis on which Mr Gill could advance his alternative argument based on “public policy”.   We are,  in any event,  very sceptical whether such an argument adds anything.   If  there had been a “flagrant breach” of Article 6 in relation to the trial and appeals process of the appellant,  that would be enough to bar his extradition.    There is no need for any further argument based on either public policy or “abuse of process”,  which is a matter to be considered only if all other statutory bars to extradition have been  taken into account and are found not to apply. 
28.	We therefore dismiss this ground of appeal.  
The Article 8  ground
29.	 The sole question we have to ask is:  was the DJ’s conclusion on the Article 8 issue wrong:  see Celinski [2015] EWHC 1274 (Admin) at [24].     The DJ was prescient because she drew up a balance sheet of the factors in favour of and against extradition,  in a manner which foreshadowed what this court recommended as the correct approach at [16] of Celinski.       Mr Gill has submitted that the DJ failed to draw up a proper balance sheet because there was no reference to the fact that the appellant had assisted the Polish authorities in connection with the case against Mr Brzezinski;  nor did the DJ’s balance reflect the fact that there had been delay since the original EAW was issued in 2006.   
30.	We accept that the DJ did not refer to the so-called “assistance” point.   We accept that the appellant gave some assistance by way of a statement before he left Poland in 2005.   But,  in our view,  that does not help the appellant.   Whether or not Mr Brzezinski had anything to do with the trial and appeal process against the appellant,  the fact that the latter assisted the authorities in relation to Mr Brzezinski’s case has nothing to do with the issue of whether the appellant’s extradition would be a disproportionate interference with the Article 8 rights of himself and his family.  Article 8 is concerned with interference with the right to respect for family and private life.  If an action is an interference with this right by a public authority,  then the question,  under Article 8(2),  is whether that interference is justified in terms of the public interests that are set out in that sub-article.   The fact that the person whose family life is subject to the interference had done a good service some years ago is not a “balancing factor” that goes towards showing that the interference by the public authority now is disproportionate and so unjustified in Article 8 terms.   
31.	As for the “delay” point,   this also is of no assistance to the appellant on the facts of this case.   The DJ found that the appellant was a fugitive.  There is no finding that the Polish authorities were dilatory in any way in seeking out the appellant;  nor could there have been.   In those circumstances,  the fact that there was a long period before the JA could serve an EAW on the appellant at an address in the UK is not a factor that has any weight in his favour in considering the Article 8  balance overall.  
32.	We therefore dismiss this ground also. 
Disposal
33.	The appeal must be dismissed and the extradition order of the DJ confirmed.