Kubiak v Public Prosecutor Prosecution Office In Haarlem Netherlands

Neutral Citation Number: [2013] EWHC 315 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT B e f o r e: MR JUSTICE COLLINS - - - - - - - - - - - - - - - - Between: KUBIAK v CO/13336/2012 Royal Courts of Justice Strand London WC2A 2LL Thursday, 31 January 2013 Claimant PUBLIC PROSECUTOR PROSECUTION OFFICE IN HAARLEM NETHERLANDS Defendant - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr G Pons (instructed by Hayes Law) appeared on behalf of the Claimant Mr A Watkins (instructed by CPS) appeared on behalf of the Defendant - - - - - - - - - - - - - - - - J U D G M E N T MR JUSTICE COLLINS: This is an appeal against a decision of District Judge Zani given on 7 September last year whereby he directed the appellant's removal to the Netherlands to face two charges, one of murder and the other of disposal or concealment of the body. The background is somewhat unusual. The appellant, who is a Polish national, was staying with her husband in a campsite in the Netherlands in 2002. There is no question, but that another Polish lady, who was a friend of the appellant certainly, and maybe of her partner at the time, was murdered and her body was disposed of by being buried. In fact, the reason why this came to light was that on 14 May 2012 she, having come to this country in 2006, attended Brierley Hill Police Station and gave evidence in interview that she had witnessed her partner committing the offence of murder on the relevant campsite. She said it was in 2000, whereas it was as we now know in 2002, but nothing really turns on that. She made this allegation because she and her partner had real difficulties, no doubt stemming from the partner's behaviour. In the result, she was taken by the police to the Netherlands in order to assist the Dutch police with their enquiries. She went in May of 2012, identified the campsite and the location of the body and, as a result, the remains of the dead woman were discovered. At that stage, she was not arrested; she was treated, it would seem, as a witness. Clearly, there was no question of any decision to prosecute and, hence, not surprisingly, no arrest took place. However, a few days later, the Dutch police took the view that she must have been involved in the murder and, as a result, the European Arrest Warrant procedure was put in train. There have been three separate warrants, the first two of which, it is accepted, were insufficient to comply with the requirement of the law which is that proper details of the offence alleged must be set out in the warrant. I am now concerned only with what is set out in the third arrest warrant. That alleges two offences: first the murder of the victim and, secondly, the disposal or concealment of her body. Those offences may be regarded as alternatives but, equally, they could be cumulative. So far as her admissions are concerned there is no question but that in my view the charge of disposal or concealment is amply and properly identified. What the warrant sets out, and it is important I think to refer to it in some detail, is as follows. It is noted that the same allegations were made against her ex-partner. Indeed, I am told that he appealed against the order that he be removed and his appeal has since been dismissed. He faces the same charges. The warrant sets out the circumstances to which I have already referred, namely, her evidence as it then was and her visit to the Netherlands to identify where she said the body had been buried. The allegation was set out which she had made against her partner in these terms: "In the period when the appellant and her partner lived on the campsite in question the deceased, who was a friend of hers, came to visit. During the visit her partner was smoking cannabis and drinking alcohol. At one point he tried to have sex with her who refused him. He then assaulted her and raped the deceased and then killed her by strangling her. Afterwards he dug a hole under the tent in front of the caravan and buried her body." The warrant goes on: "Investigations which have been carried out since the recovery of her body indicate that the tongue bone was no longer intact. Damage to the tongue bone may indicate strangulation. However it is no longer possible to establish whether the damage was inflicted by means of strangulation. The forensic examination had not provided any other evidence of externally inflicted violence." Pausing there, it seems to me quite clear that the forensic evidence is at least consistent with strangulation. That affirms the account given by the appellant. The warrant goes on: "The Dutch authorities intend to try the appellant as a party to the murder. During further investigations by the West Midlands Police, the appellant and her partner's daughter stated that her father had recently told him that the appellant killed her friend out of jealousy. Given the nature of the offences therein and the manner in which they have come to light it is impossible for the Dutch authorities at this stage to provide a detailed account of the precise acts or extent of the appellant's involvement in the murder and the disposal of the body. At this stage, her evident knowledge of the murder and disposal of the body, combined with the existence of an accusation that she was responsible for killing her female friend, mean the Dutch authorities accused both, her partner and her, of the murder, of the burial and concealment of the body. It is the Dutch authorities' intention to ensure that both stand trial for the alleged offences." There are then set out the relevant provisions of the Dutch Penal Code, including Article 47, which states that those who cause another to commit or aid others in the commission of a criminal offence are themselves guilty of the offence. It is equivalent to our law in relation to aiding and abetting. So far as the concealment of the body is concerned, the offence is that any person who buries, burns, destroys, hides, moves or takes out human remains with the intent to hide the fact or cause of death will be punished and suffer possible imprisonment for a maximum of 2 years. Mr Pons' submission is that the details that I have referred to in the warrant are insufficiently precise to indicate on their face what precisely is the case against the appellant. The District Judge dealt with this argument, which is essentially the same argument that is raised here. It was difficult, he said, to see what further information the requesting judicial authority could have given by way of further particulars in what I have already said is an unusual set of facts that give rise to these proceedings having been launched. SMITH BERNAL WORDWAVE On the face of the warrant, it does appear that the appellant was in possession of information which she chose for whatever reason not to disclose to the Dutch authorities for some 10 years until it suited her purposes to do so. It has been made clear to her that the allegation is that she was a party to the murder. There is some evidence, albeit it would seem pretty weak evidence, that the daughter's account of what her mother said which may indicate that, in due course, there will be what in this country would be described as a cut-throat defence. But it is clear from the warrant that she faces a case against her. That it is alleged that she was involved in the murder itself is, it seems to me, absolutely clear. Having regard to the fact that it is not necessary for the warrant to set out in any great detail what is the case, provided it is made clear to the individual what he or she faces, it seems to me that in the circumstances the warrant does provide sufficient information. It may be that it would have been a complete answer to any issue raised against it if the EAW had said in precise terms in a sentence or two that it was being stated that because of the time which had passed, and because she had done nothing before, it was the case against her that she was herself involved in the murder. It seems to me that that is implicit in the information that has been given. In my judgment the District Judge was correct in the approach he adopted and in the conclusion that he reached. This appeal must, in those circumstances, be dismissed. Usual order? MR PONS: Yes, please. SMITH BERNAL WORDWAVE