The High Court directed that a man be surrendered to Poland for prosecution on a single charge after rejecting his objections that a retrial would expose him to double jeopardy and breach his rights.
In a judgment delivered on 6 July 2011, Mr Justice Edwards considered an application under section 16 of the European Arrest Warrant Act 2003. The warrant sought the respondent’s surrender for prosecution in Poland. He did not consent to surrender.
The respondent had been acquitted after a three-day trial before the District Court of Tarnów on 20 March 2006. Poland’s prosecution appealed, and the Regional Court in Tarnów set aside the acquittal and directed a retrial. A letter from the respondent’s former Polish lawyer confirmed the basic sequence and described the acquittal as not a “final judgment”. The applicant did not dispute the respondent’s account.
The respondent argued that surrender would expose him to unfair double jeopardy, contrary to the Constitution and Article 4 of Protocol 7 to the European Convention on Human Rights. His counsel accepted that the earlier acquittal was not final, so the statutory bar on surrender after a final judgment did not apply. He nevertheless argued that Polish prosecution appeals were less restricted than those allowed under Irish law.
The applicant submitted that the acquittal had been set aside under Polish procedure before any final judgment, and that differences between the two countries’ criminal processes did not by themselves establish unfairness or a rights violation.
The court held that double jeopardy was not objectionable in every circumstance. It said the constitutional concern was whether repeated proceedings could create fundamental unfairness, risk wrongful conviction or otherwise deny rights. Here, the retrial followed a lawful appeal decision before a final judgment. The court said the respondent would be protected against another retrial once a final judgment had been reached. It also found that the evidence about the wider availability of prosecution appeals in Poland was “far from clear” and that the difference was not fundamental where protection against double jeopardy after a final acquittal or conviction existed.
The judge concluded that the respondent had not established either objection under section 37 and directed his surrender to the issuing state. The judgment does not state when the surrender took place.