England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		30th November 2010

1. MR JUSTICE OUSELEY: The appellant Mr Srama is a citizen of Poland. The District Court in Bydgoszcz seeks his extradition for the purposes of trying him upon an allegation that he manufactured and assisted in the manufacture of drugs in Poland.
2. The European Arrest Warrant was issued on 21 May 2008, certified on 10 March 2010, and the appellant was arrested on 10 June. This is not the first time that the requesting judicial authority has attempted to extradite this defendant to stand trial for these offences; an earlier order was quashed in 2007. The deficiencies in that warrant have been remedied in the warrant before me.
3. The appellant came before District Judge Wickham in the Westminster Magistrates' Court on 10 August 2010 and she ordered his extradition, finding the warrant to be valid. The submissions that she rejected have been repeated on appeal to me. The argument concerns the validity of the warrant.
4. The issue arises in this way. The warrant states under the heading:

"Indications on the length of the sentence maximum length of the custodial sentence or any other detention order which may be imposed for the offence: offence under the threat of the penalty of deprivation of liberty for the period of time from 3 up to 15 years."

5. The particulars of the offence show that the acts were committed between March and August 2004 in Poland and consisted in supplying drug precursors, laboratory glass wear and other equipment and assisting in the purchase of some other items for the purpose of producing at least 2-kilos of amphetamine. The allegations were classified as a drug offence under a particular paragraph of the penal code:

"in connection with the Article 53 item two of the Act as of July 29, 2005, on narcotics counter-action..."

6. Under the head of "other circumstances relevant to the case" the warrant explained how it was that an offence allegedly committed in 2004 came to be charged under an Act which was not passed until 2005. It explained that there had been some changes made by the 2005 Act in relation to the previous narcotics regulation regime contained in the 1997 Act, which was the one which applied at the time of the alleged offence.
7. The European Arrest Warrant continued by saying that there had been no changes as far as the particular offence was concerned. The wording of the particular sub-section was identical as between the 1997 and 2005 Acts. It then continued as follows:

"the qualification of the offence charged with Mr Michal Srama given in the European Arrest Warrant is the correct one. The Polish penal code in Article 4 specifies relatively precisely the rules of procedure in case when at the time of adjudication another Act is in force other than the one binding at the time of the committing of the offence, as in the systems where the positive law is in force such situations often occur. A general rule is that in such a case (temporary conflict of laws) a new Act is applied. However, an Act previously in force should be applied in a case when it shall be more advantageous for a perpetrator. As it has been mentioned above, the Act as of July 29, 2005 on counter-acting drug addiction in reference to the offence Mr Michal Srama was charged with did not introduce any changes that could worsen his legal situation. To this offence the provisions of that Act had to be applied, in spite of the fact that at the moment when the offence was committed it was not even adopted."

8. The argument in this case revolves around the undisputed fact that although the wording of the offence creating provision in the 1997 and 2005 Acts is identical, the sentencing provisions are different. Under the 1997 Act there was a minimum sentence of 3 months' imprisonment and a maximum sentence of 5 years' imprisonment. Under the 2005 Act there is a minimum sentence 3 years' imprisonment and a maximum of 15 years' imprisonment in relation to drugs of this quantity and nature.
9. Section 2 of the Extradition Act 2003 provides:

"2. A Part One Warrant is an arrest warrant which is issued by a judicial authority of a category one territory and which contains -

(a)... the information referred to in sub-section 4.

(4) (d) particulars of the sentence which may be imposed under the law of the category one territory in respect of the offence if the person is convicted of it."

10. These provisions have been considered in two cases to which I should briefly make reference. In the Office of King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1 the House of Lords had to consider the requirements which Part One of the Act imposed in relation to a warrant. Lord Hope in paragraph 27 said that the contents of the warrant were crucial to the operation of the system in Part One of the 2003 Act.
11. Section 64 defined what was an extradition offence, but that could not be addressed without the requirements in mind which a Part One Warrant had to satisfy. In paragraph 28 Lord Hope said:

"if the warrant does not conform to the requirement set out in section 2 it will not be a Part One Warrant within the meaning of that section, and part one of the Act will not apply to it."

12. The question of what was required by way of contents for a warrant to be valid was considered further by the House of Lords in Dabas v the High Court of Justice in Madrid, Spain, [2007] UKHL 6; [2007] 2 Appeal Cases 31. At paragraph 50 Lord Hope stressed that the judge first had to be satisfied that the warrant with which he was dealing was a Part One Warrant within the meaning of section 2(2):

"A warrant which does not contain the statements referred to in that sub-section cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met the warrant is not a Part One Warrant and the remaining provisions of that part of the Act will not apply to it."

13. In my judgment on the face of it the European Arrest Warrant is a valid warrant. It contains particulars of the offence, as to which now no complaint can be made. It contains particulars of the offence creating provision and explains why the 2005 Act applies to acts undertaken in 2004. It contains particulars of the sentence, as required by section 2(2) and 2(4)(d).
14. When the prosecutor considered the relationship between the 2005 Act and the 1997 Act for the purposes of considering whether the 1997 Act was more or less favourable to the appellant than the former Act for the purposes of Article 4 of the Penal Code, he came clearly to the conclusion that the 1997 Act was no less favourable to the appellant. He did so on the basis that the language of the two provisions was identical. He did not address or qualify what he said in relation to sentence. He did not say that the application of Article 4 of the Penal Code was a matter for the trial court to address; instead he reached a judgment on it. He did not say that if the appellant were disadvantaged by the new sentencing provisions, the Polish Court would be obliged under Article 4 of the Penal Code to revert to the sentencing regime under the 1997 Act. Instead of saying that a disadvantage in that respect would be addressed, it is clear that the prosecutor was saying that there was no disadvantage in applying the 2005 Act, and so there was no need to address the issue further.
15. As I have said, on the face of it that is a valid warrant because the relevant particulars are provided. However, Mr Middleton ripostes by saying that if is really what the European Arrest Warrant means, and that is how the sentencing would proceed in Poland, that would involve a breach of Article 7 of the European Convention on Human Rights. He would be facing a higher penalty for what he did in 2004 than was applicable in 2004. Granted, that at the upper end of the 1997 Act sentencing bracket there is a period which falls within the sentencing bracket permitted under the 2005 Act, in my judgment it is clear that the appellant would be at a very clear risk of having a more severe sentence imposed than was applicable in 2004. The minimum has gone up from three months to three years. The maximum has gone from five years to 15 years. It is perfectly clear that a more rigorous sentencing regime is required in respect of the manufacture of amphetamines on this scale. Although Miss Ezekiel had reservations about accepting that was the position, in effect she acknowledged that there would be a breach of Article 7 were the 2005 Act sentences to apply, because she relied upon the powers of the Polish Courts under Article 4 of the Penal Code to redress the situation.
16. I am next satisfied in considering Article 7 that there is sound evidence from Professor Krajewski, whose evidence was prepared on behalf of the appellant in relation to the previous arrest warrant, that Article 4 of the Code, the effect of which is summarised in the European Arrest Warrant, would mean that the court would be obliged to apply the provisions of the 1997 Act.
17. It is not important for these purposes whether the consequence is that the offence creating provision would remain the 2005 Act and the sentencing regime would be the 1997 Act, or whether the whole would have to be dealt with under the 1997 Act. What is important is that in order to defeat the otherwise unanswerable case, Miss Ezekiel has to rely upon the operation of Article 4 to impose the 1997 Act sentencing regime upon conviction.
18. The question therefore becomes whether, when the particulars of sentence are provided, it is that regime which should be specified rather than the 2005 Act regime, or at least the route to the imposition of the 1997 Act regime should be referred to in case it is more favourable to the appellant.
19. Mr Middleton for the appellant submits that as that is the sentencing regime which would be applied, the specification of the 2005 Act sentencing regime is wrong and the warrant is therefore invalid.
20. Miss Ezekiel submits that the 2005 Act continued correctly to be specified as the sentencing regime, because that is what went along with the application of the 2005 Act, but in any event she said it would make no difference to whether the appellant was extradited or not if the particulars of sentencing were changed, because in either event the available sentence would exceed 12 months imprisonment, and for the purposes of section 64 the offence would still be an extraditable offence. She submitted that that was the crucial test for the validity of the particulars in the warrant.
21. In my judgment the purpose of the specifying of the particulars goes beyond it simply being known whether or not the offence is an extradition offence. It is not enough for the warrant simply to say that the sentence can exceed 12 months. The language of section 2(2) makes it clear that the particulars of the sentence which may be imposed have to be specified. It is not specifying the particulars to say that the sentence exceeds 12 months. I also see what Lord Hope said in Dabas as supporting the importance of particularity, as a failure to specify the particulars goes to the validity of the warrant.
22. I also reject Miss Ezekiel's submission that correcting the provisions would make no difference, and so the omission does not go to invalidity. That would be true of many deficiencies in compliance with section 2, which plainly are correctable, but still go to validity. It is for the prosecuting authority to get the warrant right.
23. The submission that the warrant is correct in specifying the 2005 Act sentencing regime is also wrong. It is not wrong because that is not the sentencing regime for the 2005 Act, but because the reality is that it is the 1997 Act regime which Miss Ezekiel says will be applied. She has to say that to counter the Article 7 argument, but it follows, if that is so, that the particulars have not been specified. Incorrect particulars have been specified instead and wrongly specified in relation to both minimum and maximum.
24. Quite apart from the question of whether this court should have to carry out inquiries as to what the sentencing regime is, which plainly the European Arrest Warrant scheme discourages -- see Lord Hope in Dabas, paragraph 50 -- it is undesirable for the person whose extradition is sought, not to know for a variety of reasons, for example in relation to other aspects of his human rights or oppression, what sentencing regime he faces.
25. Miss Ezekiel postulates the problem of how the Polish authorities should deal with the situation where there is a new Act which governs the offence, and that Act has a new sentencing regime. The answer to my mind is quite simple. Where the prosecutor regards the position as clear, as the prosecutor did here so far as the wording is concerned, and as Miss Ezekiel submits was clear in response to the Article 7 arguments, the prosecutor, if continuing to specify the particulars of sentence under the new regime, should specifically draw attention to the way in which Article 4 of the Penal Code would mean that the former Act applied. The prosecutor could alternatively specify the 1997 Act provisions and explain why they apply. If there was for some reason a complexity in the sentencing regime which left a prosecutor uncertain as to what would be the more or less favourable regime to be applied, it would be open for that to be explained in the European Arrest Warrant, just as here the Polish authorities helpfully explained why it was that the 2005 Act applied to the 2004 offence.
26. Accordingly, I have come to the conclusion that this warrant is invalid. It does not contain the particulars of the sentence which may be imposed, but instead particulars of a sentence which, according to the prosecutor, may not be imposed. I am satisfied that a deficiency of that sort, particularly where the difference is so great, and it is not a mere technicality, requires that I allow this appeal.
27. MR MIDDLETON: Could we have an assessment of the appellant's publicly funded costs?
28. MR JUSTICE OUSELEY: Yes, you may.