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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> District Court of Warszawa Poland , R.(On Application of) v Kubun [2012] EWHC 3036 (Admin) (10 October 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3036.html Cite as: [2012] EWHC 3036 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 October 2012

1. MR JUSTICE COLLINS: There are before the court two appeals, one by the individual whose extradition is sought and the other by the authority. The reason for that is that the warrant in question contained allegations of two offences which, it was said, had been committed by the individual.
2. The district judge decided that extradition should take place on one but not on the other. Hence, each party appeals: in the case of the individual, against the decision to return him; in the case of the authority, the decision that the offence is not properly to be regarded as one for which extradition is required because of defects in the specification in the warrant of the offence in question.
3. The two offences alleged were these. First, it was said that on 10 December 1997 in Jadow, he used a false Customs document dated 29 October 1997 confirming Customs clearance of a Mercedes Sprinter - the chassis number is given - which he obtained under false pretences from a particular individual. The second offence alleged that during the period between 24 September 1997 and 26 February 1998 in an unidentified place he assisted unidentified persons in the sale of a Mercedes Sprinter - the licence number is given and its value - stolen on 24 September 1997 in the Czech Republic to the detriment of the loser, ie. he prepared and signed the sale agreement and the annex thereto and signed the certificate of the Customs Office in Rzepin regarding import of the vehicle to the Polish Customs Zone forged by unidentified persons.
4. There is no issue - dealing with the appeal by the individual first - that the first alleged offence was properly described in that it complied with the necessary details required by Section 2 (4) (c) of the Extradition Act 2003. The point taken by Mr Jones is that once it was decided that one of the offences was bad (if I may put it that way) then the whole warrant was itself bad. Accordingly, it was not permissible to return on one rather than the other.
5. Section 2 (4) (c) deals with the information that is required in a warrant and reads as follows:

"(4) The information is —

.....

(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."

6. What is said is that looking at Section 2 (4) (c), if there is a failure in any of the offences included in the warrant then that defeats the warrant itself because - even if one reads "offence" as the singular including the plural (as one must) - either, if there is one offence, the warrant fails if particulars are not properly identified or the whole fails if one of the offences is not properly specified because then the offences would not be properly covered.
7. However Parliament clearly recognised that possible difficulty and so the Extradition Act 2003 (Multiple Offences) Order 2003 SI/2003 No 3150 was made. This was a statutory instrument made by virtue of the powers conferred by Sections 207 and 223 (3) of the Act. Section 207 provides:

"207 The Secretary of State may by order provide for this Act to have effect with specified modifications in relation to a case where —

(a) a Part 1 warrant is issued in respect of more than one offence;

(b) a request for extradition is made in respect of more than one offence."

That provision is clearly included in the Act because it is recognised that where more than one offence was specified in a warrant the language of Section 2 generally - and for the purposes of this case Section 2 (4) (c) in particular - made it difficult to uphold the validity of a warrant if any one of those offences was not properly specified.

8. It is clear beyond any doubt that the purpose of the 2003 Order is to enable a court to direct the extradition for one or more of a number of offences even if one or more of them is not properly to be regarded as an extradition offence for whatever reason. The relevant provisions of the Order contained in the Schedule are, it is said, contained in paragraphs 1 and 2. Paragraph 1 provides as follows:

"1 (1) Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences).

(2) Sub-paragraph (1) does not apply to any reference to an offence —

(a) in a modification made by this Schedule; or

(b) in a provision of the Act which is relevant to such a modification.

2 (1) Section 10 is modified as follows:

(2) In sub-section (2) for 'the offence' substitute 'any of the offences'.

(3) For sub-section (3) substitute —

'(3) If the judge decides the question in sub-section (2) in the negative in relation to an offence, he must order the person's discharge in relation to that offence only.'

(4) For sub-section (4) substitute —

'(4) If the judge decides that question in the affirmative in relation to one or more offences he must proceed under Section 11.'"

9. If one goes to Section 10 one sees the reason for that modification because what it does is simply to ensure that at the initial stage of the extradition hearing the judge has to decide whether the offences or any of the offences (this is the amendment) is an extradition offence. If he decides that any of the offences are not extradition offences he must order the discharge in respect of those offences but only those offences.
10. As I understand the argument, Mr Jones submits that Section 2 of the Act is not specifically amended and, accordingly, if there is a failure to comply with Section 2 (4) (c) or indeed any parts of Section 2 the amendments to Section 10 cannot avail the issuing authority.
11. It seems to me apparent that that construction would totally destroy the purpose behind and the intended effect of the Regulations. The whole purpose of them quite clearly is to enable a court to decide whether any of the offences charged in a warrant which seeks return is a proper extradition offence. If it is, then - on that - return can take place. If it is not, then - on that and that only and that alone - return cannot be directed. To suggest that not specifically referring to Section 2 means that effectively the amendments to Section 10 have no effect is, with respect, an utterly absurd construction of the relevant legislation. The construction which I regard as clearly the correct construction I decided in a previous decision of mine, Taylor v Public Prosecutor's Office, Berlin [2012] EWHC 475 Admin I have not been in the least persuaded that my decision then - in February 2012 - was in any way wrong.
12. It follows that the appeal by the individual is dismissed.
13. I turn to the appeal by the authority. District Judge Coleman dealt with the matter briefly, saying:

"I have considered the wording of the second alleged offence with care. The type of conduct alleged is much the same as the first offence but relates to a different Mercedes vehicle. In my judgment the wording in the second allegation does not meet the requirement of Section 2. The time and place of the alleged conduct are unidentified and those he is said to have assisted are also unidentified."

He therefore discharged the defendant in relation to that offence.

14. The approach that should be adopted in deciding whether there is compliance with Section 2 (4) (c) was specified some time ago in Ektor v National Prosecutor of Holland [2007] EWHC 3106 Admin The judgment of the court (consisting of Lord Justice Richards and Mr Justice Cranston) was given by Mr Justice Cranston. He said at paragraph 7 of his judgment as follows:

"7 ..... In other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."

15. It is equally clear that the court must not take too pedantic an approach and must apply the relevant requirements in a way which promotes the purpose behind these warrants but must always bear in mind that it is necessary for what is required by the Act to be specified so far as possible and that it is essential that sufficient is given to enable the person whose extradition is sought to know what he faces.
16. The two offences are, on their face, somewhat similar as the district judge indicated but there is a crucial distinction because the first offence is said to have been against credibility of documents under Article 270 (1) of the Criminal Code. That was clearly, as the offence indicates, obtaining the vehicle in question by false pretences by the use of a false document.
17. However the second crime - the one in question - is said to have been against property under Article 2 (9) (1) paragraph 1 of the Criminal Code. I am told by Miss Hinton that that is the equivalent of what is contained in Section 22 of the Theft Act 1968 in this country, namely assisting in the disposal of stolen goods. We know that the vehicle in question was stolen in the Czech Republic and, it seems, was sold subsequently. One of the matters that has to be specified within Section 2 (4) (c) is the place where an offence was committed. It is, in my view, not a good start when one sees that the offence in the warrant is said to have been committed during the period between September 1997 and February 1998 in an unidentified place. On the face of it, that creates a difficulty because undoubtedly the requirement in Section 2 (4) (c) - the place at which he is alleged to have committed the offence - has not been set out. It might be possible to overcome that if it were clear from the other matters specified where that place was or it was clearly indicated that it was not possible to say more than that the acts in question were committed somewhere in Poland.
18. The difficulty, as I see it, in the description of the offence is that it is said that he assisted unidentified persons in the sale of the vehicle. Thus it must have been known that there was such a sale. One assumes that the date of 26 February 1998 as the closing date of the offending is there because that probably was the date on which the sale or the attempted sale took place. It is said it is not clear where that sale occurred. It seems to me that it is implicit that it was in Poland because otherwise why is there any need for a certificate for the Customs Office regarding the import of the vehicle to the Polish Customs? On the other hand, it is perhaps possible that what was being alleged was that there was an attempted sale or even perhaps an intended sale albeit the individuals with whom he was involved are not able to be specified and certainly are not specified.
19. The acts alleged against him appear to be those indicated in the last three lines, namely "he prepared and signed the sale agreement and the annex thereto and signed the certificate of the Customs Office regarding import of the vehicle to the Polish Customs Zone forged by unidentified persons". It is likely that the "forged by unidentified persons" refers to the certificate rather than the sale agreement and the annex because if he prepared and signed the sale agreement and the annex it is difficult to see how someone else could have forged it. That really is perhaps an indication of the difficulties inherent in identifying precisely what it was that he is alleged to have done. It is, I suppose, probable that the sale agreement is the agreement in relation to the sale in Poland. But I suppose it is possible that it could relate to a false document showing a genuine sale in the Czech Republic so as to explain the lawful possession of a vehicle which had in fact been stolen. Again, the matter is, in my view, not entirely clear.
20. I do not think it is necessary simply to look at the unidentified place. One has to look further and see whether the circumstances of the offending are properly identified. Each case must depend on its own facts. There are a number of cases which have dealt with the question whether an individual description of an offence in a warrant was or was not sufficient. I of course recognise that it is not appropriate for this court to be too pernickety as to what is required. It is necessary to do no more than make clear to the individual what allegations he is essentially facing. My view is that the description given or the matters specified in this particular warrant do not do what should be done. I have already referred to the unidentified place which is, on the face of it, contrary to the requirements of Section 2 (4) (c). I do not think it is possible to say clearly where the place was which is material to the commission of the offence in question. Furthermore it is far from clear what documents were provided for what purpose and where the final offence took place, whether it be an actual sale or an intended sale or an attempted sale or whether it was more than getting the matter into the Polish Customs Zone because that is what is referred to in the description itself.
21. I take the view that this is altogether too vague and it could so easily have been specified in such a way that made it clear what actually is the allegation against the individual.
22. In those circumstances albeit I think there is nothing in the time point - that is to say I do not think that the district judge was correct to say the time was not properly specified, indeed Mr Jones has not relied on that - nonetheless he was right in relation to place, and for reasons I have given I think it goes further than that. In all the circumstances I uphold the decision of the district judge in respect of both of the appeals. Each is therefore dismissed.
23. (To Mr Jones) You want the usual legal aid order?
24. MR JONES: Yes.