England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 November 2010

Lord Justice Moore-Bick :

1. This is an appeal against the order of District Judge Evans made on 25^th June 2010 ordering the extradition of the appellant to the Czech Republic in order to serve a sentence of imprisonment imposed on him for an offence of fraud.
2. On 29^th December 2003 the appellant went to a Tesco store in Kladno where he obtained a loan of 17,727 Czech Korunas (about £650) for the purchase of some electrical equipment. In order to obtain the loan he gave the lender false information about the nature of his employment and his financial means. He subsequently failed to make any of the repayments required under the loan agreement.
3. On 22^nd July 2004 a criminal order was made in respect of the appellant by the District Court in Kladno adopting a summary procedure under which a judge makes an order after reading the papers and without a hearing. The procedure is available only in relation to relatively minor offences and in cases where the evidence against the accused person is thought to be clear. In response to requests for further information about the process before the District Court Judge Matula of the District Court in Kladno has written two letters dated 15^th February and 22^nd June 2010. Although the letter of 15^th February 2010 does not expressly say so, I think one can safely infer that the criminal order must have been served personally on the appellant. It is clear from the letter of 22^nd June 2010 that such an order amounts to a conviction under Czech law, but is provisional in the sense that the accused person has the right to apply for his case to be heard in accordance with the standard procedure. If he does, the matter is tried in the ordinary way and the accused person obtains the right to a full hearing.
4. The appellant did not exercise his right to be tried in accordance with the standard procedure and on 26^th October 2004 a sentence of 400 hours of public work was imposed on him. That order was served on him personally on 3^rd November 2004. Initially the appellant co-operated with the authorities responsible for supervising such work to the extent of discussing how it should be performed, but he subsequently had a change of heart and failed to carry out any part of the sentence. As a result on 19^th July 2005 he was served with a summons to attend a hearing at which the court would consider substituting a sentence of another kind. The appellant failed to attend and on 22^nd September 2007 the court imposed a sentence of 200 days' imprisonment on him in his absence. It has so far proved impossible to serve that decision on the appellant. At some point he left the Czech Republic and has served no part of that sentence.
5. On 6^th August 2009 the District Court in Kladno issued a European Arrest Warrant in respect of the appellant, seeking his extradition for the purposes of serving the sentence of imprisonment imposed on him on 22^nd September 2007. On 17^th November 2009 he was arrested under the warrant and was brought before the Westminster Magistrates Court the next day. A hearing was listed for 19^th January 2010, but the case was adjourned on a number of occasions to enable further information to be obtained from the Czech judicial authorities. A full hearing took place before District Judge Evans on 18^th May 2010. One issue canvassed at that hearing was whether the appellant had been convicted, and if so, whether he had been convicted in his presence.
6. The judge gave his decision on 16^th June 2010. He held that the appellant had been convicted when he had decided not to challenge the criminal order after it had been served on him and that he had therefore been convicted in his presence. He also found on the basis of the information provided by Judge Matula that the appellant had been summoned to attend the proceedings on 22^nd September 2007 and by absenting himself from that hearing had lost the right to challenge the order made on that occasion. He therefore ordered the appellant's extradition.
7. The grounds of appeal set out in the notice of appeal are that the appellant was convicted when the criminal order was made on 22^nd July 2004, not, as the judge held, when he decided not to exercise his right to challenge it and that he was therefore not convicted in his presence. It is also said that the District Judge failed to give sufficient or any consideration to the fact that the procedure adopted in this case amounted to a denial of the appellant's right to a fair trial under Article 6 of the European Convention on Human Rights. In the event, however, neither of those arguments was pursued before us. Instead Mr. Pons raised, as he is entitled to, two points, neither of which was argued before the District Judge. The first is that the warrant is invalid because the appellant is not in fact a convicted person; the second is that if he is a convicted person, he has not been convicted of an extradition offence.
8. It is common ground that the warrant in this case is a "conviction" warrant, that is, it seeks the extradition of the appellant as a person who has been convicted in the Czech Republic of an extradition offence. In my view that is plainly the case. Whatever criticisms one might make of the language of the warrant, it clearly proceeds on the basis that the appellant has been convicted of an offence in respect of which he has been sentenced to a term of 200 days' detention, the whole of which remains to be served. There is nothing in the warrant which suggests that the appellant is regarded by the Czech judicial authorities as still an accused person or that his extradition is sought for the purposes of pursuing a prosecution against him.
9. Interesting questions may arise concerning the status of a person who, although convicted of an offence, retains the right to challenge his conviction: see Caldarelli v Court of Naples [2008] UKHL 51, [2009] 1 All ER 1, Mihai Sonea v Mehedinti District Court [2009] EWHC 89 (Admin) and Usti Nad Labem Regional Court v MJ [2010] EWHC 463, to all of which our attention was drawn. It may be open to question whether the decision in Sonea v Mehedinti District Court is entirely compatible with the decision in Usti Nad Labem Regional Court v MJ Mihai (in which it was not cited), or for that matter Caldarelli, but it is unnecessary to decide that point because Mr. Pons accepted that there is nothing to suggest that a right to challenge the conviction itself exists in this case. The evidence shows that notice of the criminal order was served on the appellant and that he did not exercise his right to trial in accordance with the standard procedure. On the contrary, he recognised the imposition of a sentence of public work, which necessarily presumes the existence of a conviction, even though he subsequently failed to comply with it. In those circumstances Mr. Pons was constrained to accept that the appellant had been convicted at the latest when he submitted to the imposition of that sentence and probably at some earlier time when the opportunity to request a trial in accordance with the standard procedure lapsed.
10. Section 2 of the Extradition Act 2003 sets out the essential requirements of a Part 1 warrant, which may be either in the form of an "accusation" warrant (subsection (3)) or a "conviction" warrant (subsection (5)). The information which the warrant must contain differs as between the two: see subsections (4) and (6). Whether a warrant complies with section 2 is thus partly a matter of form and content, but, as Caldarelli shows, it must also correctly reflect the substance of the position in order to be valid. In that case an accusation warrant was held to be valid, even though the appellant had been convicted and sentenced in Italy, because under Italian law the trial is a continuous process and the accused person is not regarded as having been convicted until all stages of the procedure, including any appeal, are finally complete.
11. In the present case there is nothing to suggest that a person in the position of the appellant has any right under the law of the Czech Republic to challenge his conviction. In my view the warrant complies with the requirements of section 2(5) and (6) as regards the existence of a conviction and correctly describes the position under Czech law. Accordingly, I would reject this ground of appeal.
12. The appellant's alternative submission is that the offence of which the appellant was convicted is not an extradition offence. For the purposes of Part 1 the characteristics of an extradition offence are set out in sections 64 and 65 of the Act. These provide, so far as material to the present case, as follows:

"64 Extradition offences: person not sentenced for offence

(1) This section applies in relation to conduct of a person if—

. . .

(b) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory and he has not been sentenced for the offence.

. . .

(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) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law).

65. Extradition offences: person sentenced for offence

(1) This section applies in relation to conduct of a person if—

(a) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct and

(b) he has been sentenced for the offence.

. . .

(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."

13. The maximum penalty under Czech law for the offence of credit fraud is two years' imprisonment.
14. Mr. Pons submitted that the offence of which the appellant was convicted was not originally an extradition offence since a community sentence was not sufficient to bring it within section 65(3). It became one only when a sentence of more than 4 months' imprisonment was substituted for it. The letter of 15^th February 2010 from Judge Matula shows that, if the appellant is returned to the Czech Republic, he will be served with the order imposing the sentence of imprisonment and will be entitled to challenge it before the Regional Court in Prague. Thus, he submitted, sentence has not yet been finally pronounced and in the meantime the appellant cannot be regarded as having been sentenced to anything more severe than a community penalty. In support of that argument he drew our attention to the observation of Baroness Hale at paragraph 29 in Caldarelli that the Framework Agreement, to which Part 1 of the Extradition Act 2003 was intended to give effect, is concerned with final judgments. He submitted that the sentence of imprisonment, being unenforceable until the decision is served on the appellant and even then subject to review, does not constitute a final judgment. The appellant is therefore to be treated as if he were still subject to a community sentence.
15. Miss Wilkes submitted that the scheme of the Act recognises only two classes of persons: those who have been sentenced and those who have not. The appellant has been sentenced and since the original community sentence has been entirely replaced by a custodial sentence, it is impossible to regard the appellant as any longer subject to a community penalty. Either he is subject to a custodial sentence or, if the custodial sentence is to be regarded as other than a final judgment, he is to be regarded as having not yet been sentenced. In either case, however, the offence in this case is an extradition offence.
16. The letter from Judge Matula of 15^th February 2010 indicates that the order imposing a sentence of imprisonment can be challenged by the appellant, but only by way of appeal to the Regional Court. That suggests that it is final as far as the District Court is concerned. Although it must be served on the appellant, the order also appears to be enforceable; certainly there is no evidence that it is unenforceable under Czech law while there remains a right of appeal. In those circumstances I think that Miss Wilkes was right in submitting that the original sentence has been entirely supplanted and that the appellant can no longer be treated as having been sentenced to a community penalty. In this context the Act recognises only two classes of convicted persons: those who have been sentenced and those who have not. In my view the appellant is properly to be regarded for the purposes of the Act as having been sentenced to 200 days' imprisonment, but even if the better view is that the sentencing process is not yet complete and that the appellant is therefore to be regarded as a person who has not yet been sentenced, the result is the same. In either case the offence is an extradition offence by virtue of section 64(3) or 65(3) of the Act.
17. That being so, I reject this second limb of the appellant's argument as well and would dismiss the appeal as a whole.

Mr. Justice Spencer:

18. I agree.