Extradition to Poland for ‘minor’ alleged offence would be ‘disproportionate’, Criminal Appeal Court rules

The judges allowed the appeal after ruling that it would be “disproportionate” to extradite him, in what was the first case in which the court was required to consider the provisions for leave to appeal in section 26(3)(b) of the Extradition Act 2003 introduced by section 160(1) of the Anti-social Behaviour, Crime and Policing Act 2014.

Wojciech Czerwinski applied for leave to appeal against a decision of the sheriff at Edinburgh ordering his extradition to Poland in terms of section 21A(5) of the 2003 Act.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Smith and Lady Clark of Calton, heard that the offence alleged was one of “obtaining credit by deception and forgery”.

The applicant was alleged to have entered a shop in Wagrowiec in September 2008 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 - the maximum penalty for which is eight years in custody.

The District Court in Wagrowiec issued an arrest warrant in December 2010, but the applicant could not be found and in May 2014 the Circuit Court in Poznan issued a European Arrest Warrant, following which the appellant was arrested, in June 2014.

The court had to decide whether the extradition was compatible with the person’s rights under the European Convention on Human Rights and whether, applying section 21A of the 2003 Act, it would be “disproportionate”.

In considering proportionality, the court required to 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.

Following a hearing on 11 June 2015, the sheriff at Edinburgh was satisfied in terms of section 10(4) of the 2003 Act that the offence charged in the warrant was an extradition offence and that there were no bars to extradition in terms of section 11 and therefore proceeded in terms of section 21A.

The sheriff was referred to the Criminal Practice Directions applicable in England and Wales, which provide that a judge should generally determine that extradition would be disproportionate if it falls under certain specified headings, including “minor financial offences (forgery, fraud and tax offences)” or “obtaining a bank loan using a forged or falsified document”.

However, exceptions would be made if the offence was “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”, but the sheriff did not consider that the offence was minor and further held that the offence could be regarded as “entirely premeditated”.

In these circumstances, the sheriff was not persuaded that extradition would be “disproportionate”.

However, the appellant sought leave to appeal, which may be allowed only if the court is satisfied that the sheriff ought to have decided a question before him differently ordered the person’s discharge.

He argued that the sheriff “erred” in holding that the offence was not “minor” and one in which the decision to extradite was “proportionate”.

The judges granted leave after ruling that there was an “arguable” ground of appeal.

Delivering the opinion of the court, the Lord Justice Clerk said: “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.

“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. 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.”

The judges also allowed the appeal and discharged the appellant from the European Arrest Warrant after ruling that his extradition would be “disproportionate”.

In a supplementary opinion, Lord Carloway said: “The Criminal Practice Directions Amendment No. 2, issued by the Lord Chief Justice of England and Wales, provide guidance in relation to extradition matters, including proportionality. The court understands that this guidance was made with the concurrence of the Lord Justice General, although it is for judges, rather than directed to designated authorities. The Scottish courts may have regard to them, given that concurrence, as the sheriff did in this case.

“So far as this case is concerned, the guidance states that extradition would be disproportionate in the case of ‘minor financial offences where the sums involved are small and there is a low impact on the victim’, including, for example, ‘obtaining a bank loan using a forged or falsified document’.

“The present offence undoubtedly falls within this category. However, the sheriff considered that the exception in the guidance about offences involving ‘significant premeditation’ should apply, although she described the offence as ‘entirely’ premeditated. The court is unable to agree with this approach.

“As most forgery or fraud must be, the offence was no doubt premeditated, but to describe it as significant, in connection with such a minor offence, is not appropriate.”