CO/5875/2007 
Neutral Citation Number: [2007] EWHC 2080 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 31 July 2007
 
B e f o r e:

LORD JUSTICE LEVESON 

MR JUSTICE STANLEY BURNTON 
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Between: 
KONRAD PILECKI 
Claimant

v 

THE CIRCUIT COURT OF LEGNICA, POLAND  
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss C Dobbin (instructed by Sonn MacMillan Walker) appeared on behalf of the Claimant
Mrs A Darlow (instructed by CPS) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE STANLEY BURNTON:  This is an appeal by Konrad Pilecki under section 26 of the Extradition Act 2003 against an order made for his extradition by District Judge Purdey on 9 July 2007, pursuant to section 21(3) of the Extradition Act 2003.  He was ordered to be extradited as a result of two European Arrest Warrants to which I shall shortly refer.  
2.	There are two points taken on this appeal.  The first is that neither of the Arrest Warrants complies with the requirements of the Extradition Act 2003, and in particular with the requirement contained in section 2(6)(e) that the Warrant contain 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.  Here, the category 1 territory in question was Poland.  
3.	The second issue is not as to the validity of the Arrest Warrant, but as to the decision of the district judge that the appellant had deliberately absented himself from his trial, a decision which he was required to make by section 20(3) of the Act in a case where, as here, in respect of both Arrest Warrants, the appellant had not been present during his trial.  So far as that issue is concerned, it is one which was not taken before the district judge.  It was not taken in the notice of appeal to this court, and therefore leave is required to amend the notice of appeal if the point is to be taken.  I shall consider that requirement later in my judgment.  
4.	The first of the Arrest Warrants in question, referred to as European Arrest Warrant number 56/07, was issued on 18 April 2007 by Judge Bartlomiej in the Circuit Court of Poland.  The second Warrant, which has been referred to as European Arrest Warrant 60/07, was issued by the same court.  Warrant 56/07 relates to convictions for two offences of supplying controlled drugs and one offence of theft, for which the appellant was sentenced on 26 July 2005 before the District Court of Lubin.  The total sentence imposed was one of one year and two months' imprisonment, which was originally suspended for a period of three years.  During the period of suspension, the appellant committed a further offence, and therefore on 19 April 2006 the District Court of Lubin ordered the execution of the sentence, from which a two‑day period of imprisonment was deducted.  The appellant's return was requested under Warrant 56/07 for the purposes of serving a sentence of one year, one month and 28 days' imprisonment.  
5.	Warrant 60/07 relates to three offences of supplying controlled drugs and one offence of stealing a mobile telephone.  In respect of those four offences, the appellant was sentenced on 22 February 2006 to a total of one year's imprisonment, which sentence was originally suspended for a probation period of three years.  The appellant breached the terms of court probation, and on 1 February 2007 the District Court in Lubin ordered the execution of the sentence of one year, from which a two‑day period of detention served was deducted.  His return was requested under Warrant 60/07 for the purpose of serving a sentence of imprisonment of 11 months and 28 days.  On 24 May 2007, the Serious and Organised Crime Agency certified both warrants in accordance with section 2(7) of the 2003 Act.  
6.	The European Arrest Warrant 56/07 identifies the appellant and refers to the relevant judges of the District Court of Lubin.  Under box C, which is information on the amount of penalty, it states as follows: 
	"2. Amount of adjudged penalty of deprivation of freedom or another measure relying on deprivation of freedom:‑
		1 year and 2 months of deprivation of freedom‑
		3.  Amount of penalty to be served:‑
		1 year 1 month and 28 days of deprivation of freedom."  
7.	In box E, the Warrant states that it refers generally to three offences, and it sets out the circumstances of committing the offence.  It states: 
			"Konrad Pilecki was sentenced for the act that:‑
(a)	In the period from November 2004 through December 2004 in Lubin, acting with intent conceived in advance and in order to obtain financial benefit, he gave ‑ three times ‑ narcotic drugs in the form of marijuana in the amount of [and the value in Polish currency is given] per portion to a minor [who is named], however this act constitutes a petty case. 
(b)	In the period from October 2004 through December 2004 in Lubin, acting with intent conceived in advance and in defiance of the law he gave ‑ two times ‑ narcotic drugs in the form of marijuana to a [different] minor. 
(c)	In the period from October 2004 through January 2005 in Lubin, acting with intent conceived in advance and in common and together with the minors materials concerning whose were separated to proceed separate proceedings, he committed theft of ... "
8.	And then there is a list of trademarks of various Renault motorcars and other motorcars, and a statement as to the total amount of loss caused.  The categories and classification of the offences are then stated, on which nothing turns.  There were ticks against the framework offence boxes as to illicit trafficking in narcotic drugs and psychotropic substances and swindling.  
9.	In the case of European Arrest Warrant 60/07, as stated above, the amount of penalty to be served was said to be 11 months and 28 days of deprivation of freedom.  The amount of adjudged penalty was stated to be "one year of deprivation of freedom".  In box E, there was a reference to the four separate offences which were alleged to have been committed and of which he had been found guilty in his absence, namely the taking of a mobile telephone and the giving of narcotic drugs to various minors.  
10.	The above information was supplemented by a letter dated 22 June 2007 from the Polish Court.  Referring to Warrant 56/07, it said there had been one trial, and that: 
		"Konrad Pilecki was validly sentenced for committing three offences: 
a.	for an act stipulated in article 46 item 3 in connection with article 46 item 2 of the Act on counteraction against drug addiction of 24 April 1997 in connection with article 12 of the penal code ‑ committed in the period from November 2004 through December 2004 ‑ to a penalty of 3 months of deprivation of freedom.  
b.	for an act stipulated in article 45 item 2 of the Act on counteraction against drug addiction ... in connection with article 12 of the penal code ... to a penalty of 5 months of deprivation of freedom. 
c.	           for an act stipulated in article 278 §1 of the penal code in connection with article 12 of the penal code ‑ committed in the period from October 2004 though January 2005 to a penalty of 1 year of deprivation of freedom. 
	The court aggregated the above mentioned penalties of deprivation of freedom adjudged with regard to Konrad Pilecki for the above mentioned offences and computed a combined punishment of 1 year and 2 months of deprivation of freedom with a conditional stay of its execution for a probation period of 3 years."
11.	Then it referred to the fact that the period of probation has been interrupted by an offence and therefore the sentence had been activated.  
12.	Similar information was given in relation to European Arrest Warrant 60/07.  Again, there had been one trial.  The four offences referred to in the European Arrest Warrant were set out in the letter. It stated that for the theft there had been a penalty of 6 months’ deprivation of freedom, and for each of the drugs offences a penalty of 3 months’ deprivation of freedom. The letter continued: 
"The court aggregated the above mentioned penalties of deprivation of freedom adjudged for the above mentioned offences and computed a combined punishment of one year of deprivation of freedom for Konrad Pilecki."  
13.	It then referred to the suspension of that sentence and then its activation.
14.	Section 2(6)(e), as I have said, requires that the Warrant should contain "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".  Indeed, this appellant had been sentenced for a number of offences, and therefore section 2(6)(e) required particulars of the sentence to be included in each of the European Arrest Warrants.  
15.	The point that is taken under section 2(6)(e) is that in fact the European Arrest Warrants in neither case contained particulars of the sentence which had been imposed.  In each case, a number of sentences had been imposed, as appears from the letter of 22 June 2007.  In the case of Warrant 56/07, there were sentences of three months, five months, and one year, and in the case of Warrant 60/07, there were penalties of three months on three of the offences, and six months on one, as set out in the letter.  In those circumstances, it is submitted section 2(6)(e) required the Arrest Warrant either to identify, that is to say to specify, each of those individual sentences, or at least to state expressly that the total sentence imposed had been arrived at after the imposition of the individual sentences to which I have referred.  The importance of so doing derives from the fact that, under section 65, there are minimum requirements for the custodial sentence which may constitute an offence, which has been the subject of sentence as an extradition offence.  Under section 65(2), the minimum period is one of 12 months' imprisonment, and under section 65 (3), the minimum period is one of four months.  In the present case, the requesting authority sought extradition pursuant to section 65(3).  The requirements under section 65(3) for an offence to constitute an extradition offence are:
(a)	that the conduct constituting the offence occurs in a category 1 territory.  As I have already mentioned, it was common ground that Poland is a category 1 territory, and that this conduct occurred in it. 
(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.  It is not suggested in this case that the conduct which is the subject of the Arrest Warrants would not be offences under the law of England and Wales; and
(c)	importantly, that "a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed in a category 1 territory in respect of the conduct".  If in fact there have been a number of offences, each of which was the subject of the imposition of a sentence less than four months, it is submitted it would be quite wrong in respect of those minor offences for there to be extradition to the requesting state.  
16.	The first question which has to be considered is: what was the sentence imposed by the courts on the two occasions which are the subject of these two European Arrest Warrants?  True it is, as appears from the letter of 22 June 2007, that in each case the court seems to have expressed a number of specific determinate sentences, one in respect of each offence which was the subject of the penalties it imposed.  However, the court aggregated those penalties in each case, and the sentence actually imposed was a combined punishment in the one case of one year and two months, and in the other a combined punishment of one year.  There is nothing in the Arrest Warrants or in any of the supplementary material placed before the district judge or this court to indicate that any part of those two sentences of one year and two months, and one year respectively, was determined by the court to be attributable to any particular offence.  There was, as the court stated, an aggregate punishment ‑‑ a combined punishment which covered all of the offences in question.  If therefore one asks oneself what are the particulars of the sentence which has been imposed under the law of the category one territory in respect of the offences in question in this case, it seems to me that the answer must be, in respect of one European Arrest Warrant, one year and two months deprivation of freedom, and in the other, one year's deprivation of freedom, subject to the deduction for the period actually served ‑‑ two days in each case.  
17.	That it is permissible or required to read section 2(6)(e) in that way is confirmed by the decision of this court in Trepac v Presiding Judge of the County Court in Trencin, Slovak Republic [2006] EWHC 3346 Admin.  That was a case in which the foreign court had imposed a single sentence in respect of two offences: attempted murder and carrying a concealed weapon.  It is relevant to note that, in that case, both of the offences appear to have been committed on the same day.  In that case, as in this, it was objected that the European Arrest Warrant did not comply with the requirements of the Act because it did not contain an apportionment of the total sentence to each of the offences which was the subject of the Warrant.  This court rejected that submission.  Giving the only judgment of the court, with which Lloyd Jones J agreed, Keene LJ said this at paragraph 16: 
I.	"16. 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.
II.	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.
III.	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.
IV.	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.
V.	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." 
18.	On behalf of the appellant, Miss Dobbin sought to distinguish Trepac on two bases.  The first is that the Polish Court in this case did in fact identify separate penalties for the separate offences in question.  However, in the end, it imposed one aggregate sentence for the offences covered by it: one in the case of each European Arrest Warrant which is the subject of this appeal.  As I have indicated, it is not possible to identify which part of the aggregate sentence is attributable to any individual offence.  In that respect, therefore, the Arrest Warrants in the present case do not differ from that considered by the Divisional Court in Trepac.  
19.	The second distinction which is advanced is that, in Trepac, the offences in question were committed at the same time and part of a single course of conduct.  However, nowhere in the judgment of Keene LJ is there a reference to that being a necessary constituent of his decision.  Moreover, the concepts of similar occasion, similar course of conduct and single course of conduct are not to be found anywhere in the Framework Decision or in the Act.  In my judgment, it would not be right for the validity of a European Arrest Warrant to be said to depend on whether or not the offences to which it referred were committed on the same or different occasions, or were part of the same or different courses of conduct.  Such concepts are quite extraneous to the question of the validity of the Warrant.  In those circumstances, I am satisfied that both of these Warrants complied with the requirements of section 2(6)(e).  
20.	The question also arises whether the requirement of section 65(3)(c) of the 2003 Act is satisfied. It seems to me to follow from the decision of this Court in Trepac that in a case in which an aggregate penalty of detention for a term of 4 months or longer has been imposed, it has been satisfied. There was one entire penalty for all the offences covered by each Warrant, and it was for 4 months or longer. The alternative result would be that the foreign court could not show that this paragraph had been satisfied even where it could not be shown that an individual penalty of the requisite length had been imposed in respect of one or any of the offences to which the aggregate penalty related.

21.	I turn to the second issue which has been raised before us, and that is whether the district judge was entitled to decide that the appellant had deliberately absented himself from his trial.  Before considering the evidence that was before the district judge, it is, I think, important to emphasise that this issue was not one which was taken before him.  In extradition cases, as in other cases, it is important for the parties to identify to the court, and indeed to each other, the live issues which have to be determined by the court.  That is necessary as a matter of fairness and in order for there to be a just determination of the case.  The issue which has been raised as to the absence of the appellant from his trial is not one which goes to the validity or otherwise of the European Arrest Warrant, it is one which both parties to extradition proceedings may address by evidence – documentary or live evidence.  What evidence they will adduce will of course depend on their understanding of the issues that have been raised.  If the issue as to the absence of the defendant from his trial in the foreign court is a live issue, fairness requires that the prosecuting authority is so informed.  That did not occur in this case.  The matter was dealt with on the documentary material before the court.  

22.	Moreover, this is not a case in which the appellant gave evidence that he was ignorant of the criminal proceedings against him in Poland, or that his absence from Poland and from the court where his trial took place was other than deliberate.  He gave no evidence on the issue at all.  
23.	The evidence before the district judge included that contained in the letter of 22 June 2007.  It contained the following paragraph: 
I.	"In the trial when the valid judgment sentencing Konrad Pilecki was pronounced by the District Court in Lubin in case ... 486/05 as well as in case ... 1439/05 ‑ though having been summoned properly, the named above convict did not take part in the trials.  In the trial dealt with by the District Court in Lubin, case No ... 1439/05 [the subject of European Arrest Warrant 60/07], the convict was served a summons by mail to the address he had indicated during the preparatory proceedings.  The convict did not notify the court of a change to his home address and did not deliver his new address.  While in the trial dealt with by the District Court in Lubin, case ... 486/05 [the subject of European Arrest Warrant 56/07], the convict was served a summons also to the address indicated by the convict, but here the summons was taken over by Dorota Pilecki ‑ mother of the convict.  In the above described situations, the Polish law stipulates that a summons was served correctly."  
24.	Clearly, in relation to case 1439/05, the appellant was aware of the criminal proceedings on the basis of the evidence before the district judge.  I say that because he had given an address during the preparatory proceedings to the criminal proceedings themselves.  In relation to case 486/05, the summons was sent to the home address he had given, and it was taken over by his mother, who would be expected to inform him of it if he was ignorant of it. That was the evidence before the district judge.  There was no evidence to the contrary.  In deciding whether he was entitled to come to the conclusion, as he was required to do, that the appellant had deliberately absented himself from his trial, the judge had before him that material, and nothing to the contrary and nothing to indicate that there was an issue as to whether he had in fact deliberately absented himself from his trial.  
25.	In those circumstances, it seems to me that the material before the district judge was more than adequate to justify his finding that the defendant had deliberately absented himself from his trial, and from his so deciding on a criminal standard of proof, there being no evidence to the contrary and no mention to him that there was an issue on the point, the question arises in those circumstances whether it would be right to give permission to amend the notice of appeal to raise the point.  In my judgment, it would not be right to give permission for two reasons.  One is that issues such as that must be indicated and taken at first instance unless there is very good reason indeed why they should not be.  That must be done so that the appropriate evidence is before the district judge and so that he is aware of what the real issues between the parties are.  Secondly, having examined the evidence that was before the district judge, I am of the clear view that he was entitled to find as he did, and therefore there is nothing in the point.  
26.	For these reasons, I would dismiss this appeal.
27.	LORD JUSTICE LEVESON:  I agree.  I add a few words only on the additional and new ground pursued by Miss Dobbin.  It is of course the obligation of the requesting authority to ensure that sufficient evidence to justify the extradition is put before the court, and the obligation of the district judge to ensure that each of the statute requirements set out in the Extradition Act 2003 have been met.  In that sense, the person whose extradition is sought can sit back and put the requesting authority to proof.  
28.	A sensible approach for the court, however, is to have regard to the criteria, analysing them each with the parties, noting what is in issue, and understanding why other points are not in issue and of which he can be sure based upon the material before the court.  In that way the focus of the court and the parties can be directed.  This court will be very wary of new points taken for the first time on appeal, given that it does not know precisely what was said to the district judge.  I emphasise that I do not criticise Miss Dobbin, who has come into this case at a very late stage and has herself sensibly and carefully reviewed all the material from first principles, but the point remains.  
29.	As to the appellant's knowledge of the hearings and thus his deliberate failure to attend, no issue was taken before the district judge, who expressed himself sure as to that requirement.  The evidence consisted of the appellant's involvement in a preparatory hearing to which he provided an address.  He provided no notice of change of the address, but clearly knew of the ongoing prosecution.  In the second case he was served at another address that he had also indicated, and that documentation was taken over by his mother.  In further material provided by the court, the authority asserted that the appellant had been notified correctly of the terms of the trials.  
30.	I add that, when arrested in this country on the warrants, he acknowledged, perhaps ambiguously, that he knew about them.  I agree with my Lord, Stanley Burnton J, that it was open to the district judge without more, and absent any challenge, to express himself sure that the appellant knew of these summonses and deliberately failed to attend his trials.  Had it been challenged, the district judge would doubtless have provided reasons for his conclusion, which could then have been analysed.  Although the requirements for the legislation must still be satisfied, absent obvious error, this court should be slow to allow new arguments as to inferences from the facts.  
31.	In this case, I also agree that there is no basis for now allowing this new argument to be erected.  In the event, I agree that this appeal should be dismissed.