QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE SWIFT DBE
| JAN KUCERA
- and -
THE DISTRICT COURT OF KARVINA,
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Miss Charlotte Powell (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 27 February 2008
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MRS JUSTICE SWIFT DBE :
Grounds of appeal
i) the district judge was wrong to find that the warrant was valid within the meaning of section 2(6)(e) of the Act;
ii) the district judge was wrong to find that the offence of theft was an "extradition offence" within the meaning of section 65(3)(c) of the Act;
iii) the district judge was wrong to find that there were specialty arrangements in place;
iv) the district judge was wrong to find that the extradition of the appellant was compatible with Article 8 of the European Convention on Human Rights (ECHR).
Grounds 1 and 2: the issues of the validity of the warrant and whether the offence of theft meets the requirements for an extradition offence
The legal framework
Part 1 of the Act
".. the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures".
" a movement among the member states of the European Union, gaining strength in recent years, 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".
The validity of a warrant
" b) the statement referred to in subsection (5) and the information referred to in subsection (6)."
" 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".
An extradition offence
"The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied - -
(a) the conduct occurs in a category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the UK if it occurred in that part of the UK;
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in a category 1 territory in respect of the conduct".
The information provided by the respondent
" Length of the custodial sentence or detention order imposed 1 year and 9 months
Remaining sentence to be served 1 year and 9 months "
Q: "Is the term of imprisonment of 1 year and 9 months the total of two separate sentences for the two offences?"
A: "The prison sentence in the duration of 1 year and 9 months is the only punishment for both crimes."
Q: "If so, what was the separate term of imprisonment imposed for each offence? Or, is the term of imprisonment indivisible (so that it applies to both offences and cannot be separated)? In which case, please state that this is the case."
A: "The duration of the prison sentence is indivisible."
"In response to your request [it appears that this was probably a request in relation to specialty] we inform you that if a person was requested or extradited to serve the sentence of imprisonment only for some of the criminal offences he/she was imposed an aggregate or cumulative sentence earlier [sic], the court shall rule in a public session on an appropriate sentence for the criminal offences the extradition applies to. This provision will be applied also in case of extradition of Jan Kucera It means that if the convicted person is extradited for the offence of theft only, then, after he is surrendered to the Czech Republic, the court will summon a public session in which appropriate sentence only for the criminal offence to which the extradition applies, i.e. criminal offence of theft, will be imposed."
The findings of the district judge
"The sentence of 1 year 9 months imposed for the two offences, one not an extradition crime, are said to be an indivisible aggregate sentence. As I understand, that means that it was 1 year and 9 months on each charge concurrent, in the language of an English judge. This is not a Euro concept. In relation to the extradition offence which is accepted as theft, when the penalty ranges from 6 months to 3 years, the actual sentence of 1 year 9 months, fulfils section 2(6)(e)".
"In relation to the extradition offence which is accepted as theft, when the penalty ranges from 6 months to 3 years, the actual sentence of 1 year 9 months, fulfils section 2(6)(e) [He must have meant section 65(3)(c)]. It is sufficient for the purposes of showing it is an extradition offence".
The parties' submissions
"The district judge described the position as resulting in the sentence for the non-extraditable offence being "ring-fenced". The difficulty I have with that argument is that there is no way that this court can in fact determine the extent to which the aggregate sentence reflects the sentence which the court considered appropriate for failing to provide for his son. This court is accordingly unable, it seems to me, to carry through into this situation the logic of this court in Trepac and Pilecki. It simply is not possible for this court to feel any confidence that it can identify the extent to which in truth the two remaining offences capable of being extradition offences do meet the requirements of 65(3)(c). Accordingly, it is not possible to identify, as required by section 2(6)(e), the term of imprisonment for those two offences ".
".. the liberty of the subject is at stake here, and generosity [in the construction of extradition treaties and statutes] must be balanced against the rights of the persons who are sought to be removed under these proceedings".
"The form of the 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
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".
" 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 would be an unwarranted action on the part of the English courts to demand 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."
" 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."
"The short but important question on this appeal is whether, for the purposes of Part 1 of the 2003 Act, it has to be shown that the sentence that was imposed in respect of each offence, taken on its own, was at least four months or whether it is sufficient, where that person has been convicted of several offences and an aggregated sentence has been imposed on him, that the aggregated sentence was for four months or a greater period."
"A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months".
"It is the length of the sentence alone that determines whether or not it falls within the scope of a European arrest warrant".
"Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice".
" There is no indication here or anywhere else in the Framework Decision that the sentence needs to be examined more closely to see how it was arrived at. There is no indication that it is any concern of the executing Member State to inquire as to the number of offences to which the sentence relates, if there was more than one. It is the length of the sentence that the requested person is to be required to serve, and the length of that sentence alone, that determines whether or not it falls within the scope of a European arrest warrant."
"The situation that presents itself in a conviction case is in essence a very simple one. The Framework Decision does not require it to be stated in a European arrest warrant that the requested person is unlawfully at large after conviction of an offence Nevertheless the assumption on which it proceeds is that this indeed is the position. The requested person has absconded, and his return is needed so that he may serve his sentence in the Member State where he was convicted. The principle of mutual recognition dictates that effect must be given to the sentence that was passed in the issuing Member State. All the executing Member State needs to know in these circumstances is whether or not the sentence was one for at least four months. It is not for the judicial authorities in the executing Member State to question how the sentence was arrived at".
"I would hold that it is unnecessary, in a conviction case to which section 65(3) applies, for the judge to ask himself whether the sentence that was passed for each offence satisfies the test that is set out in section 65(3)(c). If the other requirements of section 65(3) are satisfied, all he needs to do is to determine whether the sentence for the conduct taken as a whole meets the requirement that it is for the term of at least four months".
Ground 3: specialty
The legal framework
The parties' submissions
Ground 4: compatibility with Article 8
The legal framework
"(1) Everyone has a right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes quite clear that successful reliance demands presentation of a very strong case".
"What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 right".
The appellant's circumstances
Dr Soutzos' evidence
The district judge's judgment
The parties' submissions
LORD JUSTICE RICHARDS