England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		22 November 2006

1. LORD JUSTICE KEENE: This is an appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against an order for the appellant's extradition to the Slovak Republic, the order having been made on 6th October 2006 by District Judge Evans sitting at City of Westminster Magistrates' Court. There is no dispute that the Slovak Republic is a category 1 territory within the meaning of section 1 of the 2003 Act with the result that the provisions contained in paragraph 1 of that Act apply. Those provisions seek to implement in domestic law the European Council Framework Decision on a European Arrest Warrant. That framework decision reflected, as Lord Bingham of Cornhill pointed out in Office of the King's Office Prosecutor, Brussels v Armas [2005] UKHL 67 at paragraph 2, a movement among Member States to establish as between themselves

"a simpler, quicker, more effective procedure, founded on Member States' confidence in the integrity of each other's legal and judicial systems."

2. In the present case a European Arrest Warrant was issued by a relevant judicial authority in the Slovak Republic on 3rd March 2005. There is no doubt that it related to the appellant, who was arrested under it in this country on 16th August 2006. The warrant indicates that the appellant was convicted, initially in March 2004 and subsequently on appeal to the Supreme Court on 14th September 2004, of two offences, namely attempted murder and carrying a concealed weapon. Where the warrant which is in the form contained in the annex to the Framework Decision states, "length of the custodial sentence or detention order imposed", the words "13 years" have been inserted. In response to the question "remaining sentence to be served", the answer "9 years and 12 days" is given.
3. It is consequently clear that this is a case of a person convicted and sentenced and said to be unlawfully at large, and indeed the warrant states at the outset that his arrest and surrender is sought "for the purposes of executing a custodial sentence in the Slovak Republic".
4. I can take the factual background to the conviction relatively briefly. The warrant indicates that the appellant and three other named men agreed to kill a man called Chromiak. On 6th July 1998 they went to his flat (the location of which is given) and, as agreed, the victim was lured to the window where the appellant shot him, causing multiple injuries. The appellant had, it is said, carried a rifle held by him illegally and it was with this that he shot the victim.
5. The first and principal point which is taken on this appeal is that the arrest warrant is invalid. If that is so, then there is considerable authority that the extradition proceedings themselves must fail: see, for example, the speech of Lord Hope in Armas at paragraph 28 and the case of Vey v Office of the Public Prosecutor of the County Court of Montlucon [2006] EWHC 760 (Admin) at paragraph 35. That proposition does not appear to be in dispute in the present case.
6. The appellant's case on this first ground derives largely from section 2(6) of the 2003 Act, which sets out the information which has to be contained within an arrest warrant relating to a person alleged to be unlawfully at large after conviction in a category 1 territory. The required information is by virtue of paragraph (e) of that subsection:

"(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."

7. The appellant's contention, ably put by Mr Watson on his behalf, is that that statutory provision requires that, in the case of multiple offences, the constituent parts of the sentence for each offence are specified in the warrant. Our attention has been drawn to the Extradition Act 2003 (Multiple Offences) Order 2003, which modifies the 2003 Act in various ways. One of those is a general modification made by schedule 1, paragraph 1(1) of the order, which states:

"Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences)."

Paragraph 2 of that same schedule modifies section 10 of the 2003 Act dealing with the initial stage of the extradition hearing, so that the judge must decide, according to section 10(2), "whether any of the offences specified in the Part 1 warrant is an extradition offence", and if he decides that question in the negative in relation to an offence, "he must order the person's discharge in relation to that offence only": see section 10(3) as modified.

8. Mr Watson argues that the requirements of the Act must be strictly complied with, because such proceedings as these concern the liberty of the subject, as Lord Hope emphasised in Armas at paragraph 24. Moreover, this is a fast-track procedure and so the specified procedures must be followed properly. Consequently, the warrant must specify what sentence has been imposed for each offence. Without that information the court cannot determine which, if any, of the offences qualify as a "extradition offence" under section 10 and section 65, since the latter section requires the court to know the length of sentence imposed for the offence in question. Thus in the present case, without such information the court cannot be satisfied as to whether the offence of illegal possession of a firearm is an extradition offence or not because it is not known whether imprisonment for four months or more has been imposed for that offence, as is required by section 65(3)(c). Mr Watson also draws a parallel with the situation under section 2(4)(d) of the 2003 Act where, in cases of a person accused but not yet convicted, particulars are required

"of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."

That, as he says, must mean the sentence in respect of each individual offence and the same approach should be applied where the individual has already been sentenced.

9. The whole approach of the 2003 Act in its modified form requires the court to consider each offence separately, both in respect of the section 11 bars to extradition and in respect to the human rights consideration under section 21. Here, says Mr Watson, there were clearly two separate offences. The sentence for the firearms offence under Slovakian law, if one looks at it alone, could not be more than two years. The order imposed in this case by the Slovakian court may not disaggregate the 13-year term, but the English court should tell the Slovak courts to disaggregate that total period. Mr Watson frankly says that Slovakia might have to amend its sentencing procedures so as to specify separate sentences if it wishes to rely on the European Arrest Warrant procedure, otherwise section 65 of the 2003 Act in this country would be undermined.
10. On behalf of the respondent, Mr Lloyd submits that the warrant is valid and meets the terms of section 2(6)(e). It is argued that the form of the warrant, which is that in the Annex to the Framework Decision, simply requires the requesting state to specify "length of the custodial sentence or detention order imposed", and the remaining sentence to be served. This warrant, argues Mr Lloyd, does that by stating 13 years for the sentence imposed and 9 years 12 days for the remaining sentence to be served. The explanatory material served by the requesting state shows that what was imposed was a single sentence covering both offences, a sentence described in the English translation as "an accumulative sentence". The document sent by the Regional Court in Slovakia dated 14th September 2006 refers to the appellant's conviction of both offences, and then states:

"For these crimes, he was convicted for an unconditional sentence of imprisonment in length of 13 (thirteen) years."

In a further document dated 9 September 2006 from the Regional Court it is stated:

"An accumulative sentence is imposed under a condition that all the criminal offences committed are decided during the same trial and in the same judgment."

And again that goes on to refer in the singular to a sentence of 13 years' imprisonment.

11. Mr Lloyd also relies on the text of the actual order of the Supreme Court when convicting the appellant and his co-defendants. We have a translation into English of that order. It indicates the appellant's conviction for those two offences; it then imposes "a sentence of imprisonment in length of 13 years". That appears to be a single sentence.
12. It is contended on behalf of the respondent that the 2003 Act and the Framework Decision do not require the warrant to seek to apportion a single sentence of this kind when the foreign court has not itself done so. That, says Mr Lloyd, is the case here and one should not go behind the order made by the Slovakian court; to do so would be to act contrary to the fundamental principles which lie behind the Framework Decision.
13. For my part I see some force in the appellant's submissions on this issue but, on reflection, I am not persuaded by them. The form of this warrant accords with that to be found in the Annex to the Framework Decision and that form clearly contemplates that a warrant may relate to more than one offence. Indeed it has a specific sentence where the number of offences to which it relates is to be inserted. Yet it requires the requesting state merely to specify the length of the custodial sentence imposed and the amount remaining to be served.
14. As Lord Hope said in Armas at paragraph 44, the court should be slow to construe those words (in section 2(5)) in a way

"that would make it impossible to give effect to a warrant which is in the terms which the Framework Decision has laid down. The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities."

So the form of warrant does not on the face of it require separate sentences to be specified even if separate sentences have been imposed. I also note that in its form, as modified by the 2003 order, section 2(6)(e) does not require in a multiple offences case "particulars of each of the sentences" imposed in respect of the offences. In that, there is a contrast with the modified wording of section 10 which does refer to "any of the offences".

15. That deals with the formalities. The form of the warrant itself and the wording of section 2(6)(e) do not seem to me to require the specification of a separate sentence for each separate offence.
16. Having said that, I accept that where a foreign court has passed two separate sentences for two offences, one would expect the warrant to indicate that. Whether a failure to do that invalidates the warrant I will come to in a moment. But one should resist the temptation to assume that other member states in the European Union use the same sentencing regime as ourselves, with consecutive or concurrent terms in multiple offence cases. It seems that in the Slovak Republic it is possible in the case of multiple offences to impose a single overall sentence reflecting the total criminality, which sentence then appears to stand as the sentence for each offence. It is an unjustified assumption that the 13-year sentence in the present case can be split into its "constituent parts" for each offence, as the appellant argues. No doubt one could seek, post hoc, to apportion in some way as between the two offences, but it does not appear that the sentences is built up in such a way by the sentencing court. The evidence here clearly shows that the court's order does not indicate separate sentences or separate penalties being imposed for each of those two offences. No separate sentences were imposed for each offence.
17. It would be an unwarranted action on the part of the English courts to demand, as Mr Watson suggests, that the Slovak court should divide up the sentence of 13 years into such constituent parts when it has not itself done so in its original decision. I can see no justification for such a course of action. The ethos of the Framework Decision involves respect for, and confidence in, the legal systems of other Member States even though they may well differ in various ways amongst themselves in their particular procedures.
18. As I have said, I can see an argument for stating separate sentences where separate sentences are in fact imposed, because such information may be necessary in order to decide whether under section 10 an offence is an extradition offence. That, however, is not this case. Moreover, whilst such information may be needed by the court for the initial section 10 stage hearing, it does not follow that it can only be provided in the warrant and that the warrant is invalid if that is not included amongst the information within it. That does not have to be decided in this case but, for my part, I can see no reason why the requesting state cannot provide such information in supplementary documentation. Indeed Mr Watson in the course of argument accepted that that could be done.
19. For these reasons I conclude, therefore, that the arrest warrant in this case is a valid one because it complies with section 2(6) of the 2003 Act.
20. The second ground of appeal is very closely related to the first. In essence, it is that the court cannot be satisfied that the offence of illegal possession of a firearm is an extradition offence within the meaning of the Act. If it is not, then the appellant must be discharged, even though only in relation to that offence.
21. The governing definition of an extradition offence in cases where sentence has been passed already is to be found in section 65 of the 2003 Act. In the present case it is not contended by the respondent that the firearms offence falls within the framework list. What is in issue between the parties is whether it can be brought within the terms of section 65(3). That reads as follows:

"(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied-

(a) the conduct occurs in the category 1 territory;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."

It is paragraph (c) which the appellant contends is not met in the present case, because it is argued that one cannot tell that a custodial sentence of four months or more has been imposed for the firearms offence. Mr Watson submits, as he has done in relation to his first ground, that one has to look at these offences separately and that the documentation we have does not disaggregate any separate sentence and so one cannot tell whether the four month minimum has been met.

22. In contrast, Mr Lloyd argues that the sentence of imprisonment for a term of 13 years has been imposed for the conduct in question and indeed he emphasises the use in paragraph (c) of the word "conduct" as opposed to "offence". One should avoid, it is said, "an enquiry into the niceties of a foreign law", to adopt the words used by Lord Bingham in Armas at paragraph 16.
23. I am not sure that that last point is particularly convincing. One is bound, when applying section 65(3), to inquire as to what sentence has been imposed in order to ascertain whether it meets the requirements of (c). But, as I have already indicated, it does seem to me that the sentence of 13 years' imprisonment was imposed in respect of both offences looked at together and that it does not seem that that term of imprisonment can be disaggregated. The 13 years applies as much to the firearms offence as it does to the attempted murder offence. It follows that the terms of section 65(3) are met because the sentence exceeded the four month minimum.
24. In any event, if it was a single sentence that was imposed, the purpose behind section 65(3)(c) is not undermined if the illegal possession of a firearm is held to be an extradition offence in the circumstances of this case. The applicant is not at risk, once extradited, of serving a sentence in the Slovak Republic that he would not in any event have served, however the firearms offence was to be regarded. In the same way if, to take another example, the 13 years were to be regarded as imposed solely for the attempted murder with no separate penalty for firearms offences, the practical outcome of extradition would remain the same. As I have said that, however, is not my interpretation of the facts of this case as disclosed by the documentation.
25. Finally, Mr Watson advances an argument based on section 17 of the 2003 Act which bars extradition on grounds of speciality if no speciality arrangements exist with the Part 1 territory. This argument, he acknowledges, is dependent on his having succeed in persuading this court that the firearms offence is not an extradition offence. If it is, then no problem of speciality arises.
26. As I have already concluded, in my judgment the firearms offence does, in the circumstances of this case, amount to an extradition offence. It follows that this final ground of appeal cannot succeed. For my part, therefore, I would dismiss this appeal.
27. MR JUSTICE LLOYD JONES: I agree.

(Appeal dismissed; detailed assessment of Appellant's publicly-funded costs).