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 WC2A 2LL
		12th June 2008

1. LORD JUSTICE LATHAM: This is an appeal brought under Section 26 of the Extradition Act 2003 by the appellant against a decision of District Judge Purdy sitting at the City of Westminster Magistrates' Court on 8th April 2003, when he ordered the extradition to Poland of this appellant under cover of two European arrest warrants. They both arise out of the same facts, that is that it is asserted by the Polish authorities that the appellant escaped from custody whilst he was serving a 3-year sentence, which had been imposed upon him for offences of dishonesty, which we do not need to set out in detail.
2. The sentence was imposed on 13th March 2002. The two warrants are firstly a warrant which requests the United Kingdom to return him to Poland on the basis that he has been convicted of an offence and is unlawfully at large from the sentence that had been imposed by the court. The second warrant is a warrant based upon the fact of his escape which is, as one would expect, an offence under Polish law. As far as that particular warrant is concerned, the appellant makes no complaint. It follows that he is subject to extradition to Poland to face the charge of escaping from lawful custody, for which there is a maximum sentence of 2 years' imprisonment.
3. The problem arises in relation to the warrant relating to the assertion that the appellant still has a period to serve under that sentence. The warrant upon which the District Judge acted identified in part C of the translation, relating to the information about sentence, the following:

"The remaining sentence to be served: 2 (two) years and 4 (four) months."

The information contained in the other warrant makes it plain that that is an inaccurate statement of the position. It was accepted at the Magistrates' Court that in fact he only had 7 months of the sentence left to serve. The single and simple ground of appeal accordingly is that the District Judge wrongly failed in those circumstances to conclude that the warrant was invalid because of that misstatement.

4. The basis upon which the appellant places his case in the argument, set out both clearly and concisely in the skeleton argument and elegantly in her submissions to us by Miss Powell, is that, properly read, the section of the domestic legislation with which we are concerned, namely Section 2 of the Extradition Act 2003, as construed in the context of the Council Framework Decision with which we are now all familiar, requires accurate information in relation to the period to be served to be provided. Otherwise, it does not meet the statutory requirements or the requirements of the Framework Decision.
5. If we turn to the domestic legislation, it is plain under Section 2(6) that the information required in a warrant such as this does not include such a requirement. What is required by paragraph (e) is:

"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."

Miss Powell accepts that that is a requirement which has been met in this case; but, she submits, the form of the warrant was determined by the Annex to the Council Framework Decision, and in that Annex, which sets out the pro forma which is to be used in these cases, one of the matters which is identified as a matter which has to be set out is: "Remaining sentence to be served."

6. She submits that on a proper reading of the preamble to the Framework Decision, and Article 8, which is the effective article for these purposes, the pro forma in the Annex forms as much part of the requirements of a valid arrest warrant as any other requirement within the body of the Framework Decision. If that is the case, she submits, then this court should strive, as the House of Lords has now indicated in a number of authorities, to interpret the domestic legislation in accordance not only the wording of but also the objectives contained in the Framework Decision.
7. In order to evaluate the validity of that argument, it is clearly necessary to go to the wording of the Framework Decision. I would accept that in preamble 6, the preamble is clearly indicating that what will be defined by the Decision, which does include the Annex, is "the European arrest warrant". But, is perhaps most important to have regard to the wording of Article 8, because it is Article 8 which is concerned with "Content and form of the European arrest warrant". Article 8.1 provides as follows:

"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g) if possible, other consequences of the offence."

8. It is noteworthy that the pro forma contains information which goes way beyond what is required by Article 8.1. For example, the place of birth of the individual, the language which the requested person understands, the maiden name (where applicable), aliases (where applicable), and other such material, are all provided for.
9. The question that one therefore has to ask is the extent to which material over and above that expressly required in Article 8.1 provides any part of the necessary material for the validity of the warrant. It seems to me that the answer is clear. The additional material over and above that identified in Article 8.1 may well be helpful in order to determine the extent to which the requesting state can satisfy the executing Member State of those matters which are necessary for the purposes of executing the warrant in accordance with the purposes of the Framework Decision. Accordingly, they do not form part of the warrant which is a required part for the purposes of its validity. They are there to enable the Member State of whom the request has been made to carry out its task of determining whether the warrant has been properly applied to the person who is before the court.
10. The question as to the length of term still to be served is one which, in my judgment, for the purposes of domestic law, is a question which is helpful in determining whether, in the words of Section 65, which is the relevant section of the 2003 Act in this context, the person in respect of whom the warrant has been executed is unlawfully at large. The importance of the length of sentence that has been ordered, which is the requirement of Article 8.1, is that it is the length of sentence which has been ordered in this type of case which determines whether or not the offence in respect of which the appellant has been sentenced is one which falls within the meaning of an extradition offence for the purposes of Section 65.
11. That is the question which had to be determined in the case of Pilecki v Circuit Court of Legnica, Poland [2008] UKHL 7, where the point can be succinctly identified in the speech of Lord Hope of Craighead at paragraph 29 when he said:

"All the executing Member State needs to know in these circumstances is whether or not the sentence was one for at least four months."

That is all that was necessary in the present case to determine whether the request related to an extradition offence.

12. The period remaining to be served was material in the sense that it was material upon which the court could determine whether or not the appellant was unlawfully at large. He clearly was unlawfully at large and never denied it. It seems to me, in those circumstances, that the appeal must fail on those straightforward facts. But Miss Powell has submitted that there are two subsidiary arguments which she would seek to raise. Both of them are dependent upon the submission that the fact that the request has asserted that the appellant has 2 years and 4 months to serve raises the risk that he will be required to serve more than that which the sentence justified.
13. That is put in two ways. Firstly, it is submitted that that reinforces her argument that the statutory provisions should be so construed as to make an accurate statement of the period to be served a requirement of the warrant. Secondly, it raises the risk of a breach of Articles 5 and 8 of the European Convention on Human Rights, on the basis that he is at risk of being imprisoned unlawfully, on the material before the court.
14. It seems to me that that argument lacks reality in the present case. There is on the material before the court, no real risk that the Polish authorities have done any more than made a clerical error in the warrant with which we are concerned, having clearly identified what the true remaining period is in the other warrant, and having accepted that as the position expressly, both before the District Judge and before this court.
15. In those circumstances, no question here arises as to what the consequence would be if the statement as to the period to be served was demonstrably wrong, and there was a real risk that the requesting state would not accept that that was an inaccurate statement. That would raise issues which have been discussed by this court in other situations where the question arises as to the accuracy of information provided in relation to substantive issues relating, for example, to the nature of the offence or offences upon which the warrant is based. But those issues simply do not arise, in my judgment, in this case. Accordingly, I would dismiss this appeal.
16. MR JUSTICE NELSON: I too would dismiss the appeal for the reasons that my Lord has given. I would add this, the form contained in the Annex, and referred to in Article 8, is the vehicle by which or through which the mandatory information set out in 8.1 must be set out. The contents and layout of the form itself are not in any sense, in my judgment, mandatory.
17. As to the issue of risk, fairness and accuracy, the Polish authorities were themselves responsible for providing the Magistrates' Court with the correct information as to the remaining term to be served. They themselves provided that information and have asserted, both in the Magistrates' Court and here, that that is the appropriate term to be served, namely 7 months and not 2 years and 4 months. That is clearly understood by the lower court and by this court. It cannot in such circumstances be said, although the information was inaccurate, to produce any risk of any significance whatsoever, or that it was in any sense unfair. For those reasons I would also dismiss the appeal.
18. LORD JUSTICE LATHAM: Thank you both very much for all the material you have provided.
19. MISS POWELL: Thank you, my Lords. There is an application for legal aid to be assessed.
20. LORD JUSTICE LATHAM: Certainly, and the appropriate order will be made.