ANDRZEJ SPACZYNSKI v RIGA REGIONAL COURT, LATVIA [2016] EWHC 2570 (Admin)

This is a leading extradition case that George was instructed in. Further Information provided by a judicial authority further to a European Arrest Warrant to address any deficiencies or contradictions within such a Warrant. 

CO/2380/2016

Royal Courts of Justice Strand London WC2A 2LL

Thursday, 21 July 2016

Neutral Citation Number: [2016] EWHC 2570 (Admin) IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

B e f o r e:
LORD JUSTICE SIMON

MR JUSTICE OUSELEY

Between: ANDRZEJ SPACZYNSKI

v
RIGA REGIONAL COURT, LATVIA

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Appellant

Respondent

Mr D Josse QC and Mr G Hepburne Scott (instructed by Haddow and Kaye Solicitors) appeared on behalf of the Appellant
Mr J Knowles QC and Ms J Farrant (instructed by the Crown Prosecution Extradition Unit) appeared on behalf of the Respondent

JU D G M E N T (Approved) Crown copyright©

  1. MR JUSTICE OUSELEY: This is an appeal against the decision of District Judge Devas on 6 May 2016 ordering the appellant's extradition to Latvia on a conviction European Arrest Warrant ("EAW"). The EAW describes an offence of witness intimidation by threats to kill in 2003 for which the appellant received a sentence of 3 years. A number of issues were raised before the District Judge and in the amended grounds of appeal, but permission was granted only in relation to one point which relates to the guarantee of the right to a retrial under section 20 of the Extradition Act 2003. Section 20(5) reads: i. "If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial."
  2. Its effect is that where the requested person was not convicted in his presence and did not absent himself deliberately from his trial, the judge has to decide whether he would indeed be entitled to a retrial or the equivalent on appeal. If the District Judge does decide that he would not be so entitled he must order the discharge of the requested person. If the District Judge decides that he would be so entitled the District Judge proceeds then to consider human rights issues. Section 20(8) provides for what constitutes a retrial and in effect covers the ground which would be covered by article 6 of the ECHR. It is not at issue here but that, were there a retrial in Latvia, it would comply with those latter requirements. It is also not at issue but that the standard of proof which the District Judge had to apply in deciding those questions was the criminal standard of proof.
  3. The EAW itself dealt with this issue at box "d". The EAW was issued by a judge of the regional court of Rega in Latvia and was issued on 3 November 2009. That date may account for some of what then happened. Box "d" sets out, following the form of EAW annexed to the 2002 Framework Decision, that where a decision has been rendered in absentia the person "has the following legal guarantees after surrender". After referring to section 465 of the Criminal Procedure law, the following "legal guarantees" are specified:

i. "The court adjudication passed by trying the case in absentia entered into force under general procedure. However, the accused person may appeal the adjudication under the appellate procedure within 30 days of the date when he became aware or he had to become aware of the adjudication passed by the court..."

  1. The EAW noted that the requested person had not received copies of the judgment and had not appealed the judgment.
  2. The District Judge was not satisfied by the contents of box "d" to the required criminal standard that the rights to a retrial had in fact been guaranteed. He said this:

i. "It is clear that the RP became aware of the adjudication passed

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by the Latvian court at the latest on or immediately after his arrest on the EAW which was obviously considerably more than 30 days ago. Without more, it would appear that the court could not decide in the affirmative that the RP would be entitled to a retrial... because he would be out of time for such a procedure."

  1. It appears that the District Judge did not have the current language of article 465(2) of the Latvian code.
  2. Submissions that this was not so much ambiguous as a clear finding that the District Judge was concluding that he would be out of time for such a procedure, in my judgment, for reasons which I shall come to, goes far too far. But the judge continued, because he had received further information. He required that that information be put into a properly authenticated form rather than just an email. A letter dated 11 April 2016 from the public prosecutor, satisfied the District Judge to what he called the required standard, that he could answer the question in section 20(5) in the affirmative. He said this of it:

i. "However, in an email dated 7 April 2016, the RA have sought to explain that because the EAW was issued on 30 November 2009, it contains an out-of-date wording in box (d) which does not reflect the ratification by Latvia of the 2009 Framework Directive. The position, according to the email, is that the RP would be personally served with the relevant decision 'without delay after the surrender' [which I take to mean his return to Latvia] and the RP would then have the right to request a retrial or appeal within 30 days. In the light of the guidance in Cretu that further information can be 'taken into account in seeking to understand what has been stated in the EAW.'"

  1. The April 2016 document states what the District Judge says it states. The issue which troubled the District Judge, namely whether time ran from the date when the EAW was served and thus would have expired by the time of surrender, was thus resolved in the District Judge's mind: time would not commence to run until after surrender, and the retrial rights could then be guaranteed.
  2. Mr Josse QC, appearing on behalf of the appellant, reduced the points raised in the skeleton argument in effect to two. He contended that there was a contradiction between the further information and what was said in the warrant. Further information was not admissible to contradict information set out in the warrant and which was required by the Framework decision to be set out in the warrant. There had to be some limit, he submitted, on what further information could be provided. He raised a number of doubts about whether that further information really could be relied on, whether it went to translation or to its source as the public prosecutor and as to whether it itself was satisfactory to guarantee the rights. But he contended no longer, as had been one of the grounds of the skeleton argument, that the fact that the

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RP could request a retrial meant that there was a request which could be denied. He accepted that that was not a sound point.

  1. Mr Knowles QC, for the requesting authority, submitted that the District Judge had concluded that there was no more than an ambiguity in the EAW as to the date when the 30 day period for lodging an appeal or request for a retrial began to run, and that position had simply been clarified by the information of 11 April 2016. Part of the problem had arisen from the fact that the Framework Decision of 2009 amended the Decision of 2002 in relation to trials in absentia to achieve greater consistency between the EAW countries. That had led to amendments to box (d) and the proforma EAWs annexed to the 2009 Framework Decision. The failure to use the updated form did not go to validity under section 2 and there was no reason why, if the information in box (d) did not satisfy the District Judge, it could not be supplemented by further information. This was supplied, and when it was, the District came to the appropriate conclusion.
  2. There are a number of authorities to which I need to refer briefly. I should start by referring to the fact that it is quite right as Mr Knowles said that the form used for this EAW reflects the form attached to the 2002 Framework Decision and not that attached to the 2009 Framework decision. Had the latter been used the issue would not have arisen. That may be one of the reasons why the Framework Decision of 2009 and the revised proforma came to pass. I should also note that Mr Josse referred to article 4a(1) of the Framework Decision 2002 as inserted by the 2009 Decision because it entitles a judicial authority to refuse to execute an EAW where a person was tried in absentia "unless the European Arrest Warrant states that the person in accordance with further procedural requirements defined in international law has the specified rights." Accordingly, Mr Josse is right to this extent, that there has to be a statement in the EAW about the retrial rights and the way they meet the requirements of what is, in UK law, section 20. But that is not the end of the picture by any manner of means. As Mr Knowles says, it has been a commonplace for further information about retrial rights to be submitted where there are problems, doubts, uncertainties over their extent, as set out in EAWs.
  3. In the case of Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin) between paragraphs 35 and 37 Burnett LJ, with whom Irwin J agreed, set out the circumstances in which further information was to be admitted. I note, in particular, paragraph 35: i. "It will not be appropriate for requesting judicial authorities to be pressed for further information relating to the statements made in an EAW pursuant to article 4a save in cases of ambiguity, confusion or possibly in connection with an argument that the warrant is an abuse of process. The issue at the extradition hearing will be whether the EAW contains the necessary statement."
  4. So the court clearly envisaged that where there was ambiguity, further information was legitimately called for to resolve the issue. I note also what has recently been

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decided by the Supreme Court in Goluchowski v District Court in Elblag [2016] UKSC 36 in particular between paragraphs 44 and 47 in the speech of Lord Mance. I note, in particular this from paragraph 47:

i. "On the present appeals, we have a clear decision of the Court of Justice that a requirement for information in an EAW should not be read as a condition, noncompliance with which is by itself fatal to the validity of the EAW, and that the EAW may be enforced if and when separately supplied information establishes a sound factual basis for surrender."

  1. The recent decision of the Court of Justice to which he referred was the case of Bob-Dogi against an appeal court in Romania, a decision dated 1 June 2016 in case C-241/15 and at paragraphs 64 to 65 in particular. The emphasis of that decision is that requirements for information to be stated in an EAW are not to mean that further information cannot be taken into account if to do otherwise would mean a refusal of extradition on a false or misleading basis. This is perhaps not the case in which to explore the full limits of the interaction between the Framework Decision 2009 article 4a, Bob-Dogi and Goluchowski. But one thing is perfectly clear, and that is that where there is ambiguity further information is admissible to resolve it.
  2. As I have said, the District Judge was right to hold that there was at least scope for ambiguity. I do say at least scope bearing in mind that here it was legal guarantees after surrender that were being spoken of in the context of retrial rights which would only arise after surrender. But one thing is clear, the District Judge was finding that there was no more than uncertainty, sufficient to mean that he could not be satisfied to the required criminal standard. That ambiguity related to the date from when the time for appealing or requesting a retrial ran. The further material resolves that issue and makes clear that the right to request a retrial runs from the date of surrender. That further information, even if perhaps not the original information, needs to be read with the articles of the Latvian code to which it refers. It is uncertain in my judgment as to whether that can properly itself be regarded as further information, bearing in mind that it is expressly referred to in the information and in the warrant, albeit that it may not be referring to a document that is very readily accessible.
  3. Article 465(2) makes clear that an accused may appeal the adjudication within 30 days from the day when he has received a copy of the adjudication. He can then make a complaint and thereafter he obtains the status of an accused and all the rights of an accused. It is also clear that what is set out in the EAW and the Latvian further information needs to be understood in the light of the fact that it was stated that the Latvian state had ratified in 2009 the 2009 Framework Decision with the clarified rights that that gave. Both article 465 and the information need to be read in the light of that.
  4. In those circumstances it is, in my judgment, clear that whatever ambiguity there may have been about whether the 30 days ran from service of the EAW or surrender under it and service, after surrender, of the judgment, have been resolved. I do not accept that the District Judge failed to consider the right standard of proof. It is a standard of

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proof that would have been very well known to him. Nor do I accept Mr Josse's point about the source of the information being the public prosecutor. The public prosecutor is entitled to expect this court to act on the basis that he is a trustworthy person in whom this court can repose confidence. It is inconceivable on the basis that extradition follows in the light of this court's understanding of the law, should my Lord agree with me, that a Latvian court would see fit to express and act on a different view of the law. But more importantly even than that is that what matters is what Latvian law actually says. This is not a case where there can be any doubt about what Latvian law actually is. In my judgment, the concerns raised about the source of the translation are not well founded. In my judgment this appeal must be dismissed.

  1. LORD JUSTICE SIMON: I agree.
  2. MR JOSSE: My Lord, whilst I am in no way asking for an expedited transcript, in view of my Lord Mr Justice Ouseley's last remarks, I would be grateful if a transcript was made available to accompany my client when he is extradited.
  3. MR JUSTICE OUSELEY: I will ask for it to be got to me by close of play Thursday of next week.