Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 72

HCA/2015/2161/XM

Lord Justice Clerk

Lady Smith

Lady Clark of Calton

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: Govier; Harley & Co

Respondent: D Dickson AD; the Crown Agent

17 July 2015

Introduction

[1]        This is an application for leave to appeal against a decision of the sheriff at Edinburgh on 11 June 2015 ordering the extradition of the applicant to Poland in terms of section 21A(5) of the Extradition Act 2003.  It is the first case in which the court has required to consider the provisions for leave to appeal in section 26(3)(b) of the 2003 Act introduced by the Anti-social Behaviour, Crime and Policing Act 2014 (s 160(1)).  The court is entitled to regulate the matter by Act of Adjournal (s 210), but there is as yet no such Act.  In England and Wales, the Criminal Procedure Rules (SI 2014 No 1610) provide (rule 17.17(4)) that, where permission to appeal is given, the decision “indicates that the court finds reasonably arguable each ground”.

 

Background
[2]        The offence alleged is described as one of obtaining credit by deception and forgery.  The narrative is that on 4 September 2008 the applicant went into a shop in Wagrowiec and made a false declaration about his place of employment and income in order to obtain a loan of 906 Zloty (about £150) from a bank in order to buy furniture, contrary to certain articles of the Criminal Code.  The maximum penalty for this offence is 8 years in custody.  The District Court in Wagrowiec issued an arrest warrant in December 2010, but the applicant could not be found. On 5 May 2014 the Circuit Court in Poznan issued a European Arrest Warrant.  The appellant was arrested on 6 June 2014. 

[3]        As the applicant has not been convicted, the designated authority (in this case the National Crime Agency in London) requires (2003 Act s 3) to issue a certificate before an arrest can be made. It ought not to do so if (s 2(7A)) it is clear that a judge determining the matter under section 21A would be required to order the person's discharge on the basis that his extradition would be disproportionate.  In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection.  General guidance can be issued by the Lord Chief Justice of England and Wales with the concurrence of, amongst others, the Lord Justice General.  

[4]        In due course, the court must also decide whether the extradition is compatible with the person’s Convention rights and whether, applying section 21A of the 2003 Act it would be disproportionate. In considering proportionality, the court must take into account only certain specified factors including: (a) the seriousness of the alleged conduct; (b) the likely penalty; and (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition.  In England and Wales, the Criminal Practice Directions Amendment No 2 ([2014] EWCA Crim 1569) provides that, in extradition matters, a judge should generally determine that extradition would be disproportionate if it falls under certain specified headings (infra).

 

The sheriff’s decision
[5]        A hearing took place before the sheriff at Edinburgh on 11 June 2015.  The sheriff was satisfied in terms of section 10(4) of the 2003 Act that the offence charged in the warrant was an extradition offence.  She was satisfied that there were no bars to extradition in terms of section 11 and therefore proceeded in terms of section 21A.

[6]        The sheriff was referred to the Criminal Practice Directions applicable in England and Wales (supra) and cited in Miraszewski v Poland [2014] EWHC 4261 (Admin).  These provide that, in extradition matters, a judge should generally determine that extradition would be disproportionate if it falls under certain specified headings set out in a table, including “Minor financial offences (forgery, fraud and tax offences)”; for example, “obtaining a bank loan using a forged or falsified document”.  Exceptions would be made if the offence was nevertheless “significantly” pre-meditated.  It was submitted for the applicant that the offence fell within the category of “minor” and that therefore the appellant’s extradition should be classified as disproportionate.

[7]        The sheriff did not consider that the offence was minor.  She reasoned that the offence could be regarded as “entirely premeditated”.  It had occurred in 2008 and it was difficult to say what the significance of the sum involved was in relation to the general economic position of Poland and its financial institutions.  Simply translating it into a sterling equivalent on today’s terms was not appropriate.  There was no information about the applicant’s criminal record or the likely penalty that he faced.  In these circumstances, the sheriff was not persuaded that extradition would be disproportionate.

 

Decision
[8]        An appeal may be brought on a question of law or fact (2003 Act s 26(1)(3)).  The appeal may be allowed only if the court is satisfied that the sheriff ought to have decided a question before him differently; that is to say that, if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge (s 27(3)).  The application seeks leave to appeal on the broad bases that the sheriff erred in holding that the offence was: (i) not ‘minor’; and (ii) one in which the decision to extradite was proportionate. 

[9]        The first task for the court is to determine the appropriate test for the grant of leave to appeal in the absence of any statutory guidance. There are a number of options.  Since the Scottish courts deal with extradition matters in a criminal forum, the most obvious might be thought to be whether the point is “arguable”.  That is the same test as is applied in applications for leave to appeal against conviction (Criminal Procedure (Scotland) Act 1975 ss 107, 180).  “Arguable” in this context means that the appeal can properly be put forward on the professional responsibility of counsel.  The second is to adopt the test which appears to exist, at least in part, in England and Wales of “reasonably arguable”.  That would have the merit of creating uniformity in a matter governed by a United Kingdom statute.  However, there appears to be no material distinction between “arguable” and “reasonably arguable”.  The third is to use the two branched test common in immigration cases of whether the appeal has “a real prospect of success” or there is “some other compelling reason why the appeal should be heard” (Hoseini v Secretary of State for the Home Department 2005 SLT 550).  These phrases were copied (L P (Cullen) at para [5]) from the terms of the Immigration and Asylum Appeals (Procedure) Rules 2003 (rule 18(4)) applicable to appeals to the Immigration Appeal Tribunal.  The fourth is to take the more general phraseology used in civil appeals generally and described by Lord Murray in an appeal from the Employment Appeal Tribunal (Campbell v Dunoon & Cowall Housing Association 1992 SLT 1136 at 1137, cited in Hoseini).  What is required is “something in the nature of probabilis causa in relation to a genuine point … which is of some practical consequence”.  

[10]      Having regard to the fact that there will have been only one determination of the issue in Scotland and the need to achieve uniformity in both the Scottish and UK context, the court will proceed on the basis that what is being looked for is an “arguable” ground of appeal as that term is understood in the criminal appeal sifting process. 

[11]      Applying that test, there is an arguable ground of appeal.  The offence is apparently a minor one involving a small sum of money being borrowed by false pretence from a bank.  It is arguably disproportionate to extradite a person for such an offence.  The sheriff was not obliged to follow the Criminal Practice Directions, but, having done so, she may have misinterpreted them in relation to an offence of a minor nature which is “significantly” premeditated; given that a bank fraud will always be premeditated to some extent. Leave to appeal is therefore given.