APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 BY SLAWOMIR LAGUNIONEK AGAINST THE LORD ADVOCATE AND APPEAL UNDER SECTION 28 OF THE EXTRADITION ACT 2003 BY THE LORD ADVOCATE AGAINST SLAWOMIR LAGUNIONEK
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 53
HCA/2014-003346-XM
HCA/2015-1215-XM
Lord Menzies
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD MENZIES
in
(1) APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003
by
SLAWOMIR LAGUNIONEK
Appellant;
against
THE LORD ADVOCATE
Respondent:
and
(2) APPEAL UNDER SECTION 28 OF THE EXTRADITION ACT 2003
by
THE LORD ADVOCATE
Appellant;
Against
SLAWOMIR LAGUNIONEK
Respondent;
Appellant (Lagunionek): Govier; Wilson McLeod
Respondent (Lord Advocate): D Dickson, Solicitor Advocate; Crown Agent
4 June 2015
Introduction
[1] These appeals concern two separate European Arrest Warrants (“EAWs”); in respect of each of these EAWs the Republic of Poland seeks the extradition of Mr Lagunionek.
[2] On 10 September 2013 the Gdansk Regional Court, Poland issued an EAW requesting that Mr Lagunionek be returned to Poland from the United Kingdom in order to stand trial on two charges. The first charge is that between May 2002 and March 2003 in Gdansk, acting with a premeditated intent, being a member of an armed criminal organisation set up to commit offences, on not fewer than 42 occasions Mr Lagunionek committed pipeline robbery when he drilled through the walls of petroleum pipelines belonging to a specified company, placed spigots in the holes and then stole petroleum products in the total of not less 880,000 litres worth in total not less than PLN 2,780,0000 to the detriment of that company, and when stealing the petroleum products and transporting them in a vehicle not suitable for such purposes, caused immediate danger of explosion of inflammable substances, thus endangering the lives of people and posing a threat of great damage to property; and made the commission of such offences his regular source of income. The second charge is that between May 2002 and May 2003 in Gdansk, acting together and in collusion with other persons, Mr Lagunionek took part in the activities of an armed criminal organisation set up to commit criminal offences and headed by a named individual, which included, among others, pipeline robbery to the detriment of a specified company and trafficking in significant amounts of psychotropic substances such as amphetamine and intoxicating substances such as hashish and marijuana.
[3] Mr Lagunionek was never interviewed by police regarding these allegations and subsequently left Poland to live in the United Kingdom. The Polish authorities issued a warrant for his arrest on 23 August 2006. Once they became aware that Mr Lagunionek was living in the United Kingdom, an EAW was issued on 10 September 2013. Mr Lagunionek initially appeared at Edinburgh Sheriff Court on 29 January 2014 in respect of this EAW; he accepted that he was the person named in the warrant, but did not consent to extradition. After sundry procedure, a full extradition hearing was held on 5 June 2014, following which on 3 July 2014 the sheriff ordered Mr Lagunionek’s extradition to Poland in terms of section 21(3) of the 2003 Act. Mr Lagunionek has appealed against that decision to this court.
[4] Separately from the proceedings referred to above , the Regional Court in Gdansk, Poland issued a second EAW on 31 July 2014 requesting that Mr Lagunionek be returned to Poland from the United Kingdom on a detention warrant issued by the Gdansk District Court on 24 August 2009, pending trial on three charges. In summary, these charges were (1) that from 2003 to April 2004 he was a member of an organised criminal group formed in order to commit offences , in particular to steal petroleum from a specified petroleum pipeline in Subkowy, namely he participated in the preparation for, coordinated and supervised the perpetration of the offence; (2) between 30 March and 1 April 2004 at specified locations in Poland, acting in an organised criminal group he participated in attempted breaking into and stealing in Subkowy, namely he and the other perpetrators first drilled the petroleum pipeline at 189km of the pipeline, thus causing damage representing at least PLN 20,000, and then they attempted to steal 72.9 tons of petroleum worth at least PLN 72,099, thus acting to the detriment of a specified company; and (3) between 30 March and 1 April 2004, in Subkowy, acting in an organised criminal group he caused the immediate danger of fire of property of substantial value, and in particular the risk of ecological disaster or setting the petroleum transmitted through the pipeline on fire, by breaking into the pipeline, i.e. boring into the pipeline and fitting a valve in the hole.
[5] Mr Lagunionek was initially arrested by the authorities in Gdansk, Poland for the alleged offences and detained in custody on 8 November 2004. He admitted both his and his co-accused’s involvement in the offences and was liberated on bail on 29 August 2005. In addition to money bail, the other conditions of his bail were that he was prohibited from leaving the Republic of Poland and was subject to police supervision. Police supervision was subsequently discontinued and Mr Lagunionek left Poland in August 2006 after obtaining a new identity card.
[6] The indictment in respect of the matters covered by the second EAW was lodged with the district court in Gdansk on 16 September 2005. At a hearing of the case on 20 April 2006 Mr Lagunionek was not present but was represented by counsel. On that date the court ordered his temporary detention. As at 7 June 2006 his whereabouts were unknown and the Polish authorities decided to separate his case from that of his co-accused and to place him on a wanted notice. Proceedings against him were suspended on 17 September 2007 as he had not been located. On 24 August 2009 the district court in Gdansk withdrew the earlier order for Mr Lagunionek’s temporary detention and ordered a search for him. On 10 September 2010 the court removed the ban on his leaving Poland in view of the fact that an order for his temporary detention had been imposed.
[7] On 6 December 2012, 13 of Mr Lagunionek’s co-accused were convicted of the matters covered by the second EAW, and six were acquitted. These decisions were upheld by the regional court on 17 July 2014. On that date the District Court in Gdansk applied to the Regional Court in Gdansk to issue an EAW as they had become aware that Mr Lagunionek had been arrested in the United Kingdom.
[8] Mr Lagunionek first appeared in Edinburgh Sheriff Court in answer to the second EAW on 3 October 2014. He did not consent to extradition and was granted bail. The matter came to a full hearing on 29 January 2015, ultimately before a different sheriff from the sheriff who had reached the decision in respect of the first EAW. The hearing was continued until 2 March 2015, on which date the sheriff discharged the respondent from the second EAW in terms of sections 11(1)(c) and 14 of the Extradition Act 2003. The Lord Advocate now appeals against that decision to this court.
[9] We heard submissions for both parties in respect of each of these appeals on 4 June 2015. On that date we refused Mr Lagunionek’s appeal against the sheriff’s decision dated 3 July 2014 ordering his extradition to Poland. We granted the Lord Advocate’s appeal against the sheriff’s decision on 2 March 2015 to discharge Mr Lagunionek from the second EAW, and remitted that case back to the sheriff to proceed in accordance with the directions of this court. We indicated that we would give our reasons in writing for our decision in due course. This we now do. We consider the decisions in respect of each EAW in turn.
EAW 1 issued on 10 September 2013, in respect of which the sheriff ordered the extradition of the appellant to Poland by decision dated 3 July 2014.
[10] Before the sheriff, it was argued on behalf of Mr Lagunionek that his extradition was barred by the passage of time, in terms of section 11(1)(c) of the 2003 Act. That section requires to be read together with section 14 of the Act, which provides as follows:
“A person’s extradition to a category 1 territory is barred by the reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it).”
[11] Before looking at the evidence led before the sheriff, and the sheriff’s decision, it is convenient to set out in short summary the legal principles applying to cases in which section 14 is said to apply. In this respect we adopt the helpful summary given in the Court of Appeal in McKenzie v Examining Court No 9 Palma de Mallorca [2008] EWHC 3187 (admin), with some further observations of our own.
[12] First, the overriding test is one of injustice or oppression by reason of the passage of time.
[13] Second, subject to one possible exception, the burden of proving injustice or oppression rests with the requested person, and the standard is that of a balance of probabilities.
[14] Third, injustice and oppression in this context is directed to hardship to the requested party resulting from changes in circumstances that have occurred during the period between the charge and the request. “Unjust” is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration – Kakis v Republic of Cyprus [1978] 1 WLR 779 per Lord Diplock at 782. See also Wlodarczyk v The Lord Advocate [2012] HCJAC 41 at [11], and the speech of Lord Brown of Eaton-Under-Heywood in Gomes v Government of Trinidad and Tobago [2009] 1WLR 1038 at paragraphs 31 to 35. The concept of injustice requires the requested court to consider, in the facts of any particular case, whether a fair trial is impossible, having regard to the safeguards which exist under the domestic law of the requesting state. Council of Europe countries present no problems; all are subject to article 6 of the convention and should readily be assumed capable of protecting an accused against an unjust trial. (See also Allen v Her Majesty’s Advocate 2010 SCCR 861 at [14].)
[15] Fourth, oppression or injustice requires personal or family hardship greater than what is inevitable and inherent in extradition for a criminal trial in another country – Norris v Government of United States of America [2007] EWHC 71 (admin) at paragraph 154. The test for oppression under section 14, or its equivalent, is an extremely high one – Her Majesty’s Advocate v JKNF [2012] SCCR 309 at [19].
[16] Fifth, a different approach to the burden and standard of proof may arise where there has been a deliberate flight from the requesting state – Krzyzowski v Circuit Court of Gliwice [2007] EWHC 2754 (admin) at paragraphs 16, 28 and 29. Where the court finds the person is a fugitive from justice, then “save in the most exceptional circumstances” his being a fugitive “will operate as an almost automatic bar to reliance on delay”.
[17] Sixth, where delay is alleged, the focus is not principally on the length of time which has passed and the reasons for it, but rather on the demonstrable effect that any such passage of time has had on the individual in question – Campbell v Her Majesty’s Advocate 2008 SCCR 284 at [48] and [49].
[18] Applying these principles to the evidence before the sheriff who made the decision on EAW 1, the sheriff tells us in his report that:
“as far as the unjust leg was concerned, the bare assertion was made in the case for argument that evidence he required for his defence was no longer available. The topic was not touched on in the appellant’s evidence”.
He observed that:
“there was no reason to think that the court in Poland would be unable to take the passage of time into account in assessing the evidence. In any event, I certainly could not say, on the material before me, that the passage of time had resulted in a situation where the appellant could not justly be tried.”
[19] Although the note of appeal to this court adopts the formula “it would be unjust and oppressive to extradite the appellant by reason of passage of time”, there is nothing in the note of appeal, nor in the outline written submissions lodged on behalf of Mr Lagunionek, to specify why his right to a fair trial would be in any way prejudiced, far less that there was material which would render a fair trial impossible. There was no suggestion of evidence having gone missing, of witnesses having disappeared or died, of recollections having been dimmed by the passage of time, nor anything to suggest that the Polish courts were not able to put in place safeguards to protect the fairness of a trial. Although counsel who appeared for Mr Lagunionek before us indicated that he wished to argue injustice, he was unable to point to any material, either before the sheriff or before this court, which would provide a basis for such an argument. In these circumstances we are satisfied that it cannot be argued in this case that it would be unjust to extradite Mr Lagunionek to Poland.
[20] There was some evidence before the sheriff about the effect of the passage of time on Mr Lagunionek. The sheriff records that the appellant’s evidence was quite brief; he testified that he had come to Scotland in September 2006 to take up employment which his cousin had arranged for him. He had lived since then at various addresses in Aberdeen, and had been in continuous employment, although not with the same employer throughout, as a panel beater. Up until his departure for Scotland he had lived in Poland in the house where he was born. He had obtained an identity card rather than a passport to enable him to come to Scotland because an identify card took two weeks to obtain and a passport two months. He accepted that he had been interviewed in relation to the other case, but stated that a letter had come to his Polish home in 2010 saying that the matter was concluded. He was not asked a great deal about his family. It appeared that he had entered into a second marriage, but he was not asked very much about his wife. As the sheriff understood it, she and the appellant had no children together, although she had a child from a previous marriage or relationship who stayed in Scotland. It was not suggested that this child was under 18, or supported in any way by the appellant. Indeed, it was not expressly said that the appellant supported his wife. The appellant’s first wife, from whom he is divorced, and the two children of that marriage aged 21 and 15, live in Poland. The appellant stated that in 2008 bailiffs acting for his former wife managed to locate him so that he had to pay child maintenance. Although no reference was made to this in Mr Lagunionek’s evidence, in closing submissions his solicitor handed over a letter dated 3 June 2014 addressed to himself from the Aberdeen Counselling and Information Service indicating that the appellant was receiving counselling to deal with issues that the impact of the court case was having on his mental health.
[21] The sheriff accepted that the appellant had established a settled life in Scotland, and observed that plainly extradition would disrupt that life, but some degree of disruption was an inevitable concomitant of every extradition. There was no evidence about the effect of his extradition upon his current wife. The alleged offences were of considerable gravity. In terms of the material provided by the deputy regional public prosecutor in Gdansk, the alleged offences only came to light in 2005/2006, and the appellant’s alleged involvement in them may only have emerged after proceedings had got underway in the case of his co‑accused. The major feature of the delay was not inactivity on the part of the Polish authorities, but their inability to locate the appellant.
[22] The sheriff had reservations about the appellant’s credibility, but even leaving aside these, he concluded that the fact that his first wife might have found out his whereabouts did not imply that the Polish police/prosecuting authorities had been remiss in not locating him. The sheriff concluded that, having regard to all the circumstances, it would not be oppressive to extradite him by reason of passage of time.
[23] Before this court Mr Govier submitted that the sheriff had erred in three respects:
(1) He erred in assessing the period of time to be taken into account which commenced at the earliest date of the alleged offences, namely May 2002, and terminated at the date of the extradition hearing, namely 5 June 2014.
(2) He erred in failing to take into account the delays in the Polish authorities advancing the case against Mr Lagunionek. It was not known what action was taken by the authorities between May 2002 and February 2005. An arrest warrant was issued in August 2006 at about the same time that Mr Lagunionek obtained an identity card and left for Scotland. Some co‑accused in the other case were tried in December 2012, and the possibility of Mr Lagunionek residing outwith Poland was recognised in early 2013, but it was only in September 2013 that EAW 1 was issued. Mr Lagunionek was first aware of the existence and terms of the charges against him, or that the Polish authorities were seeking his extradition, when he was arrested on 28 January 2014.
(3) He erred in taking insufficient account of relevant changes in the appellant’s circumstances, on the basis of which Mr Lagunionek was justified in feeling a sense of security in his life in Scotland. He has lived in Scotland since September 2006, he has re‑married and lives with his second wife in the Aberdeen area; he has been in continuous employment as a panel beater; he has been interviewed by the Polish authorities on other matters but had never been interviewed in relation to the charges on EAW 1; and a letter had come to his former home in Poland saying that the matter was concluded.
[24] We have had little difficulty in reaching the view that the appellant has failed to meet the high test required to establish oppression in this case. We are not persuaded that there is any merit in the three respects in which it was argued that the sheriff erred in law. He was clearly aware, and narrated in his report, that the earliest date of the alleged offences in terms of EAW 1 was May 2002. There is nothing to suggest that he took account of the wrong period of time. With regard to the alleged delays of the Polish authorities in advancing the case against Mr Lagunionek, he properly focused his attention primarily on the demonstrable effect that the passage of time has had on Mr Lagunionek, rather than on any culpability on the part of the requesting state. As Lord Diplock observed in Kakis:
“the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise”.
The approach taken by the sheriff appears to have been consistent with that approved in Campbell v Her Majesty’s Advocate. There was no evidence of any particular prejudice which Mr Lagunionek suffered as a result of the delay. In any event, there was no evidence of culpability on the part of the requesting state – on the information before him, the sheriff observed that “the major feature of the delay appeared not to be inactivity on the part of the Polish authorities, but their inability to locate the appellant”. Similarly, we consider that there is no force in the third argument advanced; the sheriff clearly took account of the fact that Mr Lagunionek has established a settled life in Scotland since September 2006, but much more than this would be required to justify the conclusion that it would be oppressive to extradite him to Poland.
[25] We consider that the sheriff applied the correct legal principles, and moreover that he applied them correctly to the circumstances of the EAW 1 case. We can find no error of law in the sheriff’s decision, and we therefore refuse this appeal.
EAW 2, and the Lord Advocate’s appeal against the sheriff’s decision to discharge the respondent from this on 2 March 2015
[26] At the full hearing the sheriff (who was not the same sheriff that made the decision on EAW 1) made the following findings in fact at the full hearing (Mr Lagunionek being described therein as “the respondent”):
“(2) The respondent was arrested on the offence by the authorities in Gdansk and was detained in custody from 8 November 2004 to 29 August 2005 during the preparatory stage of the proceedings (see crown production No. 5 letter dated 16 January 2015 from the Regional Court in Gdansk).
(3) The respondent admitted his part in the offence and gave information to the Polish authorities about the involvement of his co-accused and was liberated on 20,000 zlotys bail on 29 August 2005.
(4) The other conditions attached to bail were that the respondent was prohibited from leaving Poland and was subject to police supervision.
(5) After a short period police supervision was discontinued and the respondent left Poland in August 2006 after obtaining a new identity card.
(6) The indictment for the EAW offence was lodged with the District Court in Gdansk on 16 September 2005. At a hearing of the case on 20 April 2006 the respondent was not present but was represented by defence counsel. The court ordered his temporary detention.
(7) On 7 June 2006 as the respondent’s whereabouts were unknown, it was decided to separate his case from that of his co-accused and placed him on a wanted notice.
(8) By 17 September 2007 as the respondent had not been found proceedings against him were suspended. On 24 August 2009 the District Court in Gdansk withdrew the earlier order for the respondent’s temporary detention and ordered a search for him. A copy of this order was served on the respondent’s counsel.
(9) On 10 September 2010 the District Court removed the ban on the respondent leaving Poland in view of the fact that an order for his temporary detention had been imposed.
(10) Meanwhile the co-accused were prosecuted and judgment was issued on 6 December 2012 when 13 accused were convicted and sentenced and 6 accused were acquitted.
(11) These decisions were upheld by the Regional Court on 17 July 2014. On the same date the District Court in Gdansk applied to the Regional Court in Gdansk to issue an EAW as they had learned the respondent had been arrested in the United Kingdom. The EAW was signed by the Regional Court on 31 July 2014 and was certified on behalf of the Crown Agent on 22 September 2014.
(12) In relation to the other EAW in which the respondent is sought by the Regional Court in Gdansk, (currently the subject of an appeal to Your Lordships) information about the respondent living abroad was obtained by the Polish authorities at the beginning of 2013. On 10 September 2013 an EAW was granted by the Regional Court in Gdansk. The respondent first appeared in answer to this EAW at Edinburgh Sheriff Court on 28 January 2014. After sundry procedure his extradition was ordered by the Sheriff on 3 July 2014 following which the respondent appealed. That appeal has been sisted pending the outcome of this case.
(13) Between 17 September 2007 and 31 July 2014 the requesting authorities took no action in the present case against the respondent. In March 2014 the requesting authorities indicated the present proceedings remained stayed (see crown production No. 3 page 2 of Regional Public Prosecutor’s letter para 4). The Lord Advocate’s Office and the requesting authorities were in communication regarding the respondent’s other live EAW case from January 2014 following his arrest in Scotland.
(14) The respondent did not appear on this EAW until 3 October 2014 although his exact whereabouts were known to the requesting authorities from January 2014 and his probable whereabouts since 2008.
(15) The actions of the requesting court in deliberately not pursing the offence against the respondent until belatedly reviving proceedings against him on 31 July 2014 were oppressive.
(16) As the years passed following his departure from Poland the respondent was entitled to feel a sense of security that the Polish authorities were no longer pursing him for the offence. Given the age of the offence there is a risk of prejudice to the respondent were trial to take place now.
(17) The period the respondent spent on remand coupled with the substantial bail forfeited represents a similar outcome to the sentences imposed on some of the former co-accused.”
[27] In his note the sheriff explains that he accepted that, Mr Lagunionek having been in custody from 8 November 2004 to 29 August 2005, he was then released on bail, which comprised money bail in the sum of 20,000 zlotys together with further bail conditions, not to leave Poland and police supervision. He accepted that the respondent had left Poland when he was not free to do so in terms of his bail conditions and therefore was a fugitive and could not claim the benefit of the basic test set out by Lord Diplock in Kakis. However, the sheriff considered that the case raised certain exceptional circumstances which Lord Diplock alluded might change matters, and which were the subject of scrutiny in Gomes at paragraphs 19 and 23/24. In this context he considered that it was necessary to consider both EAW 1 and EAW 2; although they resulted from different enquiries, both cases featured a number of accused, including the respondent and concerned the appropriation of fuel from pipelines in the Gdansk area of Poland. EAW 1 involved alleged criminal activity between May 2002 and March 2003, and EAW 2 referred to alleged criminal activity between 2003 and April 2004. Criminal proceedings in the present case began within a few months of the offence dates and the respondent was detained from November 2004 until the end of August 2005.
[28] Initially the respondent did not admit committing the offences charged but in the course of further interviews provided detailed information on how the gang operated, how it prepared and committed the offences and who the other members of the criminal organisation were. Ultimately in December 2012 13 persons were convicted and sentenced and six were acquitted, and the convictions were confirmed on appeal on 17 July 2014.
[29] The sheriff goes on to note that during a substantial period of time proceedings against the respondent were stayed and an EAW was not prepared until the conclusion of proceedings against all other accused. Meantime the same court in Gdansk commenced proceedings in the other case in April 2006 and obtained a warrant against the respondent on 23 August 2006 when he could not be found. Ultimately an EAW was obtained in that case in September 2013 after it was said information came to the requesting authority’s attention at the beginning of that year that he was living abroad. The EAW in the other case was sought in September 2013, and the respondent was arrested in January 2014 in Scotland. The EAW in the present case was not issued until 31 July 2014. The sheriff observed that both EAWs emanate from the same court in Poland, and that it was clear from correspondence that the requesting authorities were aware of both matters yet chose to take no action in this case until sometime after the prosecution of the co-accused had taken place. The sheriff went on to make the following observations:
“[23] It seems clear in the present case while the respondent was initially a fugitive, he may well have developed a sense of security when he received the Polish court’s interlocutor of 10 September 2010 (defence production no.1) and I accepted his evidence that police supervision of his bail fell away before he left Poland about a year after he had been released on bail in August 2005. Despite the respondent’s absence from court in 2006 he continued to be represented by his lawyer and the case continued to a conclusion against his co-accused.
[24] Given the priority the requesting court gave to the other case I concluded that a deliberate decision had been made not to take proceedings further against the respondent. However once proceedings including appeal proceedings had taken place a belated decision seems to have been taken to reactivate the case against the respondent and seek an EAW. By this time it had been known for a considerable time where the respondent was as extradition proceedings in the other case had been underway against the respondent since January 2014. The belated decision to take further action against the respondent appeared to me to be oppressive given the passage of time when proceedings against the respondent were inactive.
…
[27] On the chronologies provided by the requesting state officials had information from the beginning of 2013 (but perhaps from as far back as 2008) that the respondent was in the United Kingdom. The respondent’s solicitor had been able to inform his client of the requesting court’s interlocutor in 2010 which suggests his general whereabouts outside Poland were known to the Polish authorities.
[28] The actions of the requesting court who had control and knowledge of both cases is inconsistent and in my view the period of deliberate inaction in the present case meets the exceptional circumstances referred to in Gomes. There is no suggestion the case file for this EAW was lost, the chronology is clear that a deliberate decision was made to stay this case and not seek an EAW at the same time, or indeed as part of the same document as the other case.
[29] A decision was taken to pursue this case only after extradition was ordered by my colleague in the other EAW. Given the deliberate delays in the present case by the requesting court I considered it oppressive to allow the EAW to proceed and discharged the respondent. Although he had fled from Poland in August 2006 by the requesting courts actions from 2008 he was entitled to garner a sense of security after receiving the requesting court’s interlocutor in 2010 and the subsequent lapse of time which included a substantial time where he was sought on an entirely different charge. The respondent had in addition served the equivalent of a 12 months sentence of imprisonment and presumably forfeited the substantial amount of bail, an outcome akin to some of the sentences imposed on former co-accused.”
[30] In presenting the appeal on behalf of the Lord Advocate, Mr Dickson reminded us of Lord Diplock’s further observations in Kakis at page 783:
“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept that.”
[31] Mr Dickson also relied on the observations of Mr Justice Mitting in Krzyzowski at paragraphs 28 and 29:
“I have no difficulty with the concept that the ‘chain of causation’ maybe attenuated in a case in which the extraditee flees justice and goes into hiding but his whereabouts subsequently become known to the requesting state. Culpable delay thereafter on the part of the requesting state can be taken into account, as happened in Kakis; but where the whereabouts of the extraditee remain unknown to the requesting state, I do not see how delay on its part can properly be taken into account save in an exceptional case. This court remains bound by the reasoning in Kakis, which compels that result. The exception for the exceptional case will cater for the handful of cases in which serious injustice or oppression would otherwise result.”
[32] In the present case, the sheriff having found that Mr Lagunionek was a fugitive, that should have presented an almost automatic bar to his relying on delay, unless he could establish serious injustice or oppression. There is nothing in the present case to suggest such serious injustice or oppression.
[33] Mr Dickson drew our attention to some important dates in the chronology of the proceedings to which EAW 2 relates. When the indictment first called against Mr Lagunionek in Poland on 20 April 2006 he was not present but was represented by counsel. At a hearing on 26 April 2006 the court imposed an order for pre‑trial arrest and issued a wanted notice. On 7 June 2006, as Mr Lagunionek had not been located, the court separated the indictment and instructed that proceedings should be taken separately against him. On 17 September 2007 as Mr Lagunionek had not been traced the proceedings were suspended and the authorities continued to search for him within Poland. On 24 August 2009 having failed to locate him in Poland, the court issued a notice to search for him including placing his particulars on the Schengen Information System (SIS). At that time the United Kingdom was not a part of the SIS, only joining it on 13 April 2015. On 17 July 2014 having been advised of Mr Lagunionek’s arrest in Scotland, the court decided to issue an EAW, and on 31 July 2014 EAW 2 was signed and issued by the Polish court.
[34] Against that background, it was submitted that there was no culpable delay in the issuing of EAW 2 by the Polish authorities. They only became aware of Mr Lagunionek being in the United Kingdom at about the beginning of 2013. The fact that his solicitor was able to inform Mr Lagunionek of the interlocutor of 2010 was not capable of giving rise to the inference that his general whereabouts outside Poland were known to the Polish authorities. The sheriff was wrong to categorise the delay in the present case as a “period of deliberate inaction”, and further to find that it met the exceptional circumstances referred to in Gomez. The Polish authorities had taken all reasonable steps to locate Mr Lagunionek, by issuing warrants and searching for him in Poland, and by issuing a notice on 24 August 2009 to be placed on the SIS. It was not the fault of the Polish authorities that this proved to be ineffective because Mr Lagunionek was living in the United Kingdom which was not part of the SIS until April 2015.
[35] Mr Dickson submitted that the sheriff erred in his finding in fact 15 in categorising the actions of the requesting court as being “deliberately not pursing the offence”. He was also in error in finding in fact 16 in stating that as the years passed following his departure from Poland the respondent was entitled to feel a sense of security that the Polish authorities were no longer pursing him for the offence. Nothing done or omitted to be done by the Polish authorities could give rise to such a sense of security. Mr Lagunionek was a fugitive from justice since his failure to appear at trial in Poland on 26 April 2006. The sheriff was also wrong to state in finding in fact 16 that, giving the age of the offence, there was a risk of prejudice to Mr Lagunionek were trial to take place now. This was mere conjecture for which there was no evidence, and it flies in the face of the reasoning underlying the EAW system and the presumption that the Polish courts are able to secure a fair trial.
[36] For Mr Lagunionek Mr Govier submitted that the sheriff’s findings in fact were sound and that he was justified in deciding that Mr Lagunionek’s extradition to Poland is barred by reason of the passage of time. He invited us to dismiss the appeal.
[37] We agree with the submission on behalf of the Lord Advocate. On the basis of the information from the Polish authorities which was before the sheriff, we do not consider that he was justified in stating in finding in fact 13 that between 17 September 2007 and 31 July 2014 the requesting authorities took no action in the present case against the respondent. By interlocutor dated 10 September 2010 the Polish court revoked the prohibition on his leaving Poland but explained that it was doing so because it was reapplying pre‑trial detention. The authorities ordered a search for Mr Lagunionek within Poland, and on 24 August 2009, having not located him in Poland, the Polish court issued a notice to search for him including placing his particulars on the SIS. This was not effective because the United Kingdom only joined the SIS on 13 April 2015. This was not the fault of the Polish authorities. We consider that it is wrong to describe this as inaction; it was also wrong to state in finding in fact 15 that the actions of the requesting court in deliberately not pursuing the offence… were oppressive. Not only was there nothing to suggest that the authorities were deliberately not pursing the offence, there was no evidence before the sheriff which met the high test for oppression discussed above. Furthermore, the sheriff states that given the age of the offence there is a risk of prejudice to the respondent were trial to take place now, but there was no evidence before him of any such risk.
[38] The starting point it seems to us, is that having admitted his involvement in these offences to the authorities and having been charged and in due course granted bail subject to a condition that he did not leave Poland, he then left Poland. The sheriff correctly concluded that he was a fugitive.
[39] By way of emphasising the importance of this element, it is helpful to remind ourselves of the observations of this court in Wlodarczyk v The Lord Advocate [2012] HCJAC 41 at paragraph [13]:
“[13] The significance of an accused’s fleeing a jurisdiction where he faces criminal charges, and the relationship between such flight and the actions of the state requesting extradition, were considered further by the House of Lords in Gomes v Government of Trinidad and Tobago, [2009] 1 WLR 1038. In that case Lord Brown of Eaton-under-Heywood stated, at paragraph 26, that if an accused person deliberately flees from a jurisdiction in which he has been bailed to appear it does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on its part. That included losing the file, dilatoriness, or the common case of mere inaction through pressure of work and limited resources. None of these should be regarded as breaking the chain of causation between the accused’s own conduct in taking flight and the delay in bringing him to trial. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or something equivalent, can allow him to assert that the effects of delay were not of his own choice and making. Such an approach was based on considerations of public policy: principally to minimize the incentive for the accused to flee; and secondly to avoid the need to evaluate the degree of fault on the part of the requesting State, a process that was categorized as ‘invidious (involving an examination of the state’s resources, practices and so forth) [and] also expensive and time-consuming’: ibid at paragraph 27.”
[40] It appears to us that the sheriff has not attached sufficient weight to these views (and to the observations in Gomes, and in Wlodarczyk which we have quoted above. Instead, the sheriff took the view that while Mr Lagunionek was initially a fugitive, he may well have developed a sense of security when he received the Polish court’s interlocutor of 10 September 2010. We do not agree that the receipt of this interlocutor could have caused a reasonable person to develop such a sense of security. All it did was to revoke the bail condition prohibiting Mr Lagunionek from leaving Poland because he was to be detained in custody. This does not amount to exceptional circumstances as discussed in Gomes and Wlodarczyk.
[41] The sheriff concluded that a deliberate decision had been made not to take proceedings further against the respondent. We do not consider that this is an inference which can be justified on the basis of the material before him. He also infers that because Mr Lagunionek’s solicitor had been able to inform his client of the requesting court’s interlocutor in 2010, his general whereabouts outside Poland were known to the Polish authorities. Again, we do not consider this inference to be justified by the evidence. Because a defence lawyer can communicate with his client, by whatever means, it does not follow that the prosecuting authorities are aware of his whereabouts. It appears to us that the Polish authorities took reasonable steps to progress proceedings against Mr Lagunionek, by issuing a warrant for his detention, by searching for him within Poland, by placing his name on the SIS, and, when they discovered that he was in the United Kingdom, by applying for EAW 2. We do not consider that these amount to the sort of exceptional circumstances which are discussed in the authorities.
[42] Moreover, the observations which we have made in relation to EAW 1 with regard to injustice and oppression are also applicable in relation to the EAW 2. With regard to injustice there does not appear to have been any specific evidence placed before the sheriff that there was a risk of prejudice to his right to a fair trial. The sheriff observes that there is a risk of prejudice to the respondent were trial to take place now, but it is not clear what he had in mind. There is no suggestion of witnesses having disappeared or died, or of documentary evidence which might assist the defence having been lost. It does not appear to us that the sheriff has considered the question whether a fair trial in Poland is now impossible, nor the safeguards which exist under the domestic law of Poland to protect a defendant against a trial rendered unjust or oppressive by the passage of time. If he has considered these factors, he has not explained his reasons for reaching the conclusion that he has reached.
[43] With regard to oppression, the sheriff appears to have directed his attention largely to the causes for the delay in seeking EAW 2. He has not focused on the established effect of the passage of time on the person in question (see Campbell at [48] and [49]). Although he concluded that Mr Lagunionek may well have developed a sense of security when he received the Polish court’s interlocutor of 10 September 2010, and although he found in finding in fact 16 as the years passed following his departure from Poland the respondent was entitled to feel a sense of security, he made no finding in fact that Mr Lagunionek did in fact feel such a sense of security. If any evidence was presented to him about Mr Lagunionek’s family life in Scotland, his circumstances, or why he would suffer particularly significant disadvantage as a result of delay in obtaining EAW 2, the sheriff does not set this out in his report. Reminding ourselves that the test for establishing oppression in the context of section 14 is an exceptionally high one, we conclude that the sheriff has erred in law in finding oppression established in this case.
[44] In terms of section 29 of the Extradition Act 2003 for these reasons we shall allow the appeal against the sheriff’s decision of 2 March 2015 to discharge the respondent from EWA 2. We remit this matter back to the sheriff to reconsider this application in light of our reasons and direct him to proceed as he would have been required to do had he decided the relevant question in terms of section 14 of the aforementioned Act differently at the extradition hearing. We do not consider that such reconsideration should involve any re-hearing of evidence. Such reconsideration should proceed on the basis that the first sentence of finding in fact 13, and the whole of findings in fact 15 and 16, should be deleted.