APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Kingarth	[2013] HCJAC 7 XC504/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003   by   ANDRZEJ GARBARZ   Appellant;   against   LORD ADVOCATE   Respondent:   _____________

 

Appellant: McCluskey; Good & Stewart, Edinburgh

Respondent: Sheldon; for Lord Advocate

 

14 December 2012

[1] This appeal concerns a European Arrest Warrant issued by the Polish authorities in Krakow on 12 September 2008. It relates to three offences; two of possession of amphetamine and one of vandalising a car in the years 2005 and 2006. The sentences, which were imposed in 2006 and 2007, were negotiated between the appellant and the authorities and consisted of custodial terms, ranging from nine to eighteen months, all of which were suspended in favour of a probationary period of four years in total. In due course, the probation was breached by the appellant and the court in Krakow determined that the original sentences of imprisonment should be imposed. The balance remaining to be served extends to about two and a half years, although it was unclear from the submissions whether the appellant, if extradited, would be entitled to some form of early release.

[2] The hearing on the extradition application took place on 19 April 2012. During that hearing, the point taken focused upon the passage of time which had expired since the original sentences. However, the sheriff held that the appellant had been a fugitive during the relevant period and that the lapse of time did not bar extradition. He ordered that extradition on 31 May 2012.

[3] The Note of Appeal, which was presented timeously, raised only the question of whether the sheriff had been correct in determining that the appellant was a fugitive and that therefore the passage of time did not prevent extradition. A hearing on the appeal was fixed for 14 December 2012. At that hearing, it was intimated that the appellant did not insist on the existing (only) ground.

[4] However, on 11 December 2012, the appellant moved to amend his Note of Appeal to incorporate a ground which proposed that the extradition infringed the appellant's rights under Article 3 of the European Convention on Human Rights. In essence, this new ground is that the prison sentences selected by the Polish courts were disproportionate to the offences and therefore, in some way, amounted to inhuman or degrading treatment or punishment. It was accepted that this argument had not featured at all in the proceedings at first instance or in the appeal process to date. The only reason given for the attempt to introduce it now was that it had occurred to counsel when he had been instructed for the appeal hearing.

[5] The court requires to consider two principal matters. The first is whether cause has been shown whereby the court should entertain this new matter at such a late juncture, especially given that, should it do so, the appeal hearing would require to be discharged and further information obtained relative to the Polish sentences and the likely period of imprisonment to be served. The second is whether there is any obvious merit in the new ground, such that the court would be bound to notice the Human Rights argument, notwithstanding its absence at first instance or in the Note of Appeal. There is no reason why this matter could not have been raised either at first instance or in the Note of Appeal. There is no obvious merit in the proposition that relatively short periods of imprisonment for recognised criminal offences can breach Article 3 of the European Convention. No authority has been produced to support the soundness of such an argument in law. In these circumstances the court will refuse to allow the Note to be amended. Since the existing ground is not insisted upon, this appeal is refused.

 

 

DL