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
		4 March 2008

1. MRS JUSTICE SWIFT: The appellant in this case is unrepresented. Arrangements were made for a video link today between the court and the prison where he is currently held. Facilities for an interpreter were also made available. We are told that the appellant is well aware that these facilities are available but nevertheless has refused to leave his cell and take advantage of them. We have considered it right to proceed with the appeal. We have before us a skeleton argument which was submitted by counsel at a time when the appellant was represented. We also have a skeleton argument from the respondent who is represented here in court by Mr Weekes. We have not thought it necessary to hear detailed oral submissions from Mr Weekes since the matter is fully covered in his skeleton argument.
2. This is an appeal under the provisions of Section 26 of the Extradition Act 2003 ("the Act") from an order of District Judge Nicholas Evans on 28 January 2008. On that date, the district judge ordered the appellant's extradition to Poland pursuant to two separate European arrest warrants. The appeal relates solely to the order made pursuant to the first of those warrants.
3. The first warrant was issued by the respondent on 10 October 2007. It sought the extradition of the appellant in order to serve periods of imprisonment (totalling 8 years 7 months and three days) which were imposed in 2004 and 2006. The warrant referred to five separate sets of criminal proceedings:

(i) case reference III K 1189/03, which alleged that, on 15 July 2004, the appellant was convicted of ten offences of theft and one offence of handing stolen goods for which he was sentenced to 2 years' imprisonment of which 1 year 7 months and three days' imprisonment remains outstanding;

(ii) case reference III K 938/04, which alleged that, in November 2005, the appellant was convicted of an offence of burglary for which he was sentenced to 2 years' imprisonment;

(iii) case reference III K 217/05, which alleged that, on 24 January 2006, the appellant was convicted of five offences of theft for which he was sentenced to 2 years' imprisonment;

(iv) case reference III K 535/06, which alleged that, on 3 April 2006, the appellant was convicted of an offence of burglary for which he was sentenced to 2 years' imprisonment; and

(v) case reference IV K 324/05, which alleged that, on 6 December 2006, the appellant was convicted of an offence of burglary for which he was sentenced to 1 year's imprisonment.

4. The warrant stated that, in respect of each set of proceedings, the appellant had deliberately absented himself from the hearing. He left Poland and at some time entered the United Kingdom. He was arrested in the United Kingdom, on the first warrant, on 16 November 2007 and, on the second warrant, on 19 December 2007. The hearings in respect of both warrants took place on 28 January 2008, when the district judge ordered the appellant's extradition on both warrants.
5. The grounds of the appeal relate to the first warrant alone and are that:

(i) the district judge was wrong to find that the first warrant was valid within the meaning of Section 2(6)(e) of the Act; and

(ii) the district judge was wrong to find that the offences specified in case references 1189/03 and 217/05 were "extradition offences" within the meaning of Section 65(3)(c) of the Act. These are the proceedings where a single sentence of imprisonment was imposed for multiple offences.

6. Poland has been designated a category 1 territory for the purposes of the Act, and the appellant's extradition therefore falls to be considered under Part I of the Act. Part I is the process by which the United Kingdom has transposed into national law the Council of the European Union Framework Decision of 7 June 2002 ("the Framework Decision") on the European arrest warrant and the surrender procedures between Member States. The purpose of the Framework Decision (and of Part I of the Act) is to facilitate the prompt surrender of a person who is in the territory of one Member State to the territory of another Member State where he is the subject of criminal proceedings.
7. In order to be valid, a warrant must meet certain requirements. If it does not satisfy those requirements, Part I of the Act will not apply to it and the courts have no jurisdiction to make orders in respect of it.
8. Section 2 of the Act defines the material that must be contained in order for a warrant to be valid. Section 2(2) of the Act provides that a Part I warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains (in a case like the present one where the person named in the warrant has been convicted of the offences specified in the warrant and is unlawfully at large):

"(b) The statement referred to in sub-section (5) and the information referred to in sub-section (6)."

9. It is accepted that, in this case, the statement required by Section 2(2)(b) was contained in the warrant. The dispute arises in respect of the "information" required by that sub-section. Section 2(6) defines that "information" as including:

"(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."

10. The question that arises is whether the warrant in this case complied with the requirements of Section 2(6)(e).
11. It should be noted that the Extradition Act 2003 (Multiple Offences) Order 2003 ("the 2003 Order") provides, inter alia, that references in the Act to "an offence" (including references to "an extradition offence") are to be construed as references to "offences" (or "extradition offences").
12. Section 10 of the Act (as modified by the 2003 Order) requires the judge at an extradition hearing to decide whether any of the offences specified in the Part I warrant is an "extradition offence". If the judge decides that question in the negative in relation to an offence, he must order the requested person's discharge in relation to that offence.
13. The conditions that must be satisfied in order for an offence to constitute an extradition offence are set out (in a case where the person named in the warrant has been convicted of and sentenced for an offence constituted by the conduct specified in the warrant, and is unlawfully at large) at Section 65 of the Act. Section 65(3) provides:

"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."

14. It is common ground that Poland is a category 1 territory and that the relevant conduct occurred there. The condition in Section 65(3)(a) is therefore satisfied. It is accepted also that the conduct alleged in the warrant would constitute an offence or offences under the law of England and Wales if committed here and that it therefore fulfils what is frequently termed the "dual criminality" requirement of Section 65(3)(b).
15. The question that then arises is whether, in relation to the offences which are the subject of case refs. 1189/03 and 217/05, the condition (sometimes termed "the test of gravity") set out in Section 65(3)(c) is satisfied so as to render them "extradition offences" within the meaning of Section 10.
16. Before the district judge, it was accepted by counsel then acting for the appellant that the district judge was bound by the decision of this court in Pilecki v The Circuit Court of Legnica, Poland [2007] EWHC 2080. In his skeleton argument in support of this appeal, counsel sought to argue that the decision in Pilecki was wrong. Subsequently the judgment of the House of Lords in Pilecki [2008] UKHL 7, upholding the decision of this court, has been handed down.
17. It was argued in the skeleton argument submitted by the appellant's former counsel that the contents of the extradition warrant demonstrate that the appellant received aggregate sentences in the two relevant sets of proceedings, so that the respondent was unable to specify what sentence was imposed for each individual offence as, it was submitted, was required by Section 2(6)(e) and Section 65(3)(c). Thus, it was said, the warrant is not valid and the respondent has not established that the sentences imposed for the offences are of the minimum length necessary to render the offences "extradition offences".
18. On behalf of the respondent, Mr Ben Lloyd relied on the House of Lords' decision in Pilecki. He submitted that, in the light of that decision, the appeal could not succeed.
19. In Pilecki, two separate European arrest warrants had been issued for the extradition of the appellant. The first warrant related to convictions for three offences, for which a sentence of 1 year and 2 months' imprisonment had been imposed. The second warrant related to convictions for four offences which had been met by a sentence of 1 year's imprisonment.
20. Subsequent information supplied by the respondent judicial authority revealed that the appellant had in fact received a variety of sentences of imprisonment for each of the offences for which he had been convicted. Some of those sentences were for periods of less than four months and some of them were for longer periods. The Polish court had aggregated the sentences for the purposes of its final judgment. However the combined punishment was less than the sum of the individual sentences for each offences. It was not possible to say how much of the aggregated sentence was attributable to each offence.
21. Lord Hope gave the leading judgment. At paragraph 5, he set out the issue for determination thus:

"The short but important question on this appeal is whether, for the purposes of Part I 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 the 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."

22. In his judgment, Lord Hope accepted that, in a case where extradition of a person who is accused of multiple offences is sought, it is appropriate for a judge at the extradition hearing to examine each of the offences separately in order to determine whether all or any of them meet the requirements for an extradition offence. However he said that this approach was not necessarily appropriate in a case where extradition is sought of a person who has already been convicted of multiple offences. He referred to Article 2(1) of the Framework Decision which states:

"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."

23. Lord Hope pointed out that Article 2(1) provided two different tests as to whether the purpose for which extradition is sought is sufficiently serious to justify the arrest of the requested person and his surrender to the requesting state under the Framework Decision. In a case where the requested person has already been sentenced, the test is directed solely at the execution of sentences. He observed at paragraph 25 of his judgment:

"It is the length of the sentence alone that determines whether or not it falls within the scope of a European arrest warrant."

24. This approach was, he said, confirmed by other provisions of the Framework Decision. At paragraph 26 of his judgment, he quoted a passage from paragraph 5 of the Preamble to the Framework Decision which states:

"Traditional co-operation 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."

25. Lord Hope went on to refer to the provisions of Article 8(1) of the Framework Decision and the Annex thereto. He observed, at paragraph 28 of his judgment:

"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."

26. At paragraph 29 he said:

"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."

27. Lord Hope referred to the fact that Member States have different sentencing practices. He said that an inquiry by one Member State into how a sentence had been arrived at would be contrary to the principle of mutual recognition on which the Framework Decision was founded. The computation of sentence was entirely a matter for the requesting state. Nor was it to be supposed that the purpose of the Framework Decision was to require Member States to change their sentencing practices.
28. Lord Hope observed that Section 2(6)(e), as modified by the 2003 Order, required information to be given of particulars "of the sentence which has been imposed under the law of the category 1 territory in respect of the offences" [my emphasis]. This corresponded precisely with the Annex to the Framework Decision. He had no difficulty in concluding that the requirement of Section 2(6)(e) was met. Section 65(3)(c) did not, he said, present any problem either. It referred to "a sentence of imprisonment ..... [that] has been imposed in the category 1 territory in respect of the conduct" [my emphasis]. This wording was consistent with the Framework Decision and the contents of the warrant fulfilled this requirement.
29. Lord Hope stated, at paragraph 34 of his judgment, that the problem in the case lay only in the wording of Section 10(2), as modified by the 2003 Order. This required a judge to decide whether "any of the offences" specified in the Part I warrant was an extradition offence. He concluded:

"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 a term of at least four months."

30. The facts of this case raise precisely the same issue as that raised in Pilecki and are indistinguishable. On the basis of that decision it is plain that the particulars of the sentence imposed for the various offences which were the subject of the first warrant are sufficient to satisfy the requirements of Section 2(6)(e) and Section 65(3)(c) of the Act.
31. Accordingly I would dismiss this appeal.
32. LORD JUSTICE RICHARDS: I agree.