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
		23 February 2011

LORD JUSTICE JACKSON:

1. This judgment is in five parts, namely:

Part 1: Introduction;

Part 2: The Facts;

Part 3: The Appeal to the High Court;

Part 4: The Law;

Part 5: Decision.

Part 1: Introduction
2. This is an appeal against an order for extradition to Poland in a conviction case. The central issue in this case is whether the European arrest warrant is invalid since it specifies a single aggregate sentence for three offences, only two of which would be a crime in England and Wales.
3. In this judgment I shall refer to the Extradition Act 2003 as "the 2003 Act". Section 2 of the 2003 Act provides:

"(1)This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2)A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—

...

(b) the statement referred to in subsection (5) and the information referred to in subsection (6).

...

(5)The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued [has been convicted] of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6)The information is—

(a) particulars of the person's identity;

(b) particulars of the conviction;

(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(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."

4. Section 10 of the 2003 Act provides:

"(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.

(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4) If the judge decides that question in the affirmative he must proceed under section 11."

5. Section 65 of the 2003 Act provides:

"(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."

6. The Extradition Act 2003 (Multiple Offences) Order 2003 provides for certain modifications to be made to the 2003 Act in cases where a Part 1 warrant is issued for more than one offence. I shall refer to this order as "the 2003 Order". The modifications to the 2003 Act are set out in the schedule to the 2003 Order. Paragraph 1(1) of the schedule to the 2003 Order provides that:

"Unless the context otherwise requires, any reference in the [2003] Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences)."

7. Paragraph 2 of the schedule provides a number of modifications to be made to section 10 of the 2003 Act. Section 10 of the 2003 Act (as amended by the schedule to the 2003 Order) in respect of cases where there is more than one offence, reads as follows:

"(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether any of the offences specified in the Part 1 warrant is an extradition offence.

(3) If the judge decides the question in subsection (2) in the negative in relation to an offence he must order the person's discharge in relation to that offence only.

(4) If the judge decides that question in the affirmative in relation to one or more offences he must proceed under section 11."

8. It should be noted that the 2003 Act was enacted in order to give effect to Council Framework Decision 2002/584/JHA, which was adopted by the Council of the European Union on 13 June 2002. I shall refer to this as "the Framework Decision". I shall read out certain provisions of the Framework Decision which are relevant to the present appeal. At paragraph 8 the preamble to the Framework Decision provides:

"Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender."

9. Article 1.1 of the Framework Decision states:

"The European arrest warrant" is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

10. Article 2.1 of the Framework Decision reads:

"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".

11. Article 8.1 of the Framework Decision reads:

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

...

(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."

12. Having set out the legislative background, I must now turn to the facts.
Part 2: The Facts
13. On 4 October 2007, the appellant was sentenced in the District Court in Zabkowice Slaskie, Poland for three offences. These were:

(1) assaulting his wife on numerous occasions between  January 2000 and October 2004, including one occasion when he caused injury to her left arm;

(2) threatening to kill his wife in various telephone calls between February 2005 and May 2006; and

(3) failing to pay child support for his daughter, Paula, in accordance with a court order between December 2005 and May 2007.

14. For these three offences the court imposed a total sentence of 18 months imprisonment suspended on conditions.
15. On 7 November 2008, the District Court ordered the appellant to serve the sentence that had previously been suspended. The appellant did not surrender to custody in Poland. Instead he either took up or continued residence in the United Kingdom.
16. On 19 May 2010, the Circuit Law Court in Swidnica, Poland issued a European arrest warrant requesting that the appellant be arrested and surrendered to that court for the purpose of serving his sentence in Poland.
17. On 21 July 2010, the Serious Organised Crime Agency certified the European arrest warrant in this jurisdiction. The request by the Polish Judicial Authority was heard before District Judge Zani at Westminster Magistrates' Court on 18 November 2010.
18. It was argued, on behalf of the appellant, that the third offence listed in the European arrest warrant did not satisfy section 65(3) of the 2003 Act because it was not a criminal offence under English law. It was submitted that the other two offences would be crimes under English law, but there was no way of discerning from the European arrest warrant whether or not they had attracted a sentence of four months or more. Accordingly it was submitted that section 65(3)(c) was not satisfied in respect of those two offences. Therefore, it was argued on the appellant's behalf, the request from the Polish Judicial Authority should not be granted, and the appellant should be discharged. The District Judge rejected that argument. He noted that the global sentence exceeded four months. He declined to try to separate out the total sentence into parts. He ordered that the appellant be extradited to Poland.
19. The appellant was aggrieved by that decision and he appeals to the High Court.
Part 3: The Appeal to the High Court
20. By an appellant's notice, dated 22 November 2010, the appellant challenges the decision of the District Judge. The appellant submits to this court, as he submitted below, that only two of the three offences listed in the warrant would be crimes in England and Wales. He argues that there is no way of knowing that the sentence for either or both of those counts amounts to four months or more. In those circumstances it is contended, on the appellant's behalf, that neither of the two relevant offences listed in the warrant falls within the definition of "extradition offence" in section 65(3) of the 2003 Act. Accordingly Mr Julian Atlee, for the appellant, argues that the requirements of sections 2 and 10 of the 2003 Act are not satisfied. Therefore the appellant must be discharged.
21. Mr Daniel Sternberg, for the respondent, resists this appeal. Mr Sternberg relies upon the fact that two of the offences listed in the warrant satisfy the requirement of dual criminality and that the total sentence imposed exceeds four months imprisonment. Mr Sternberg submits that the conditions for extradition set out in Part 1 of the 2003 Act are met.
22. Both counsel rely upon the terms of the Framework Decision and a number of recent authorities. Before addressing the rival submissions of counsel, I must first review the relevant law.
Part 4: The Law
23. At the time when the Framework Decision was adopted Article 34(2) of the Treaty on European Union provided as follows:

"The Council shall take measures and promote co-operation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:

...

b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved, but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;"

24. In Criminal Proceedings against Pupino (Case C-105/03) (16 June 2005) the European Court of Justice held that when applying national law courts:

"must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) EU." (See paragraph 43 of the court's judgment.)

The court incorporated the gist of this paragraph into its preliminary ruling at the end of the judgment.

25. In Dabas v the High Court of Justice Madrid, Spain [2007] UKHL 6; [2007]2 AC 31, the House of Lords reviewed both the Framework Decision and the 2003 Act. At paragraph 4 of his speech Lord Bingham said this:

"4. But Part 1 of the 2003 Act must be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA; OJ 2002 L190, p 1). This was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delay. There is to be substituted "a system of surrender between judicial authorities" and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial cooperation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions."

26. In Dabas the House of Lords cited and followed the guidance given by the European Court of Justice in Pupino. The House of Lords interpreted Part 1 of the 2003 Act in a manner which would achieve the objectives of the Framework Decision and avoid technical obstacles. The details of the Dabas decision are not material for present purposes, as that case concerned an offence within the European framework list.
27. On 1 December 2009 the Treaty of Lisbon came into force. On that date the former Article 34 was repealed. In its place, Article 82 of Chapter 4 ("Judicial Co-operation in Criminal Matters") required Member States to co-operate on the basis of mutual recognition and enforcement of judicial decisions. Despite the repeal of the former Article 34, it must remain the duty of this court to interpret the 2003 Act, so far as possible, in a manner which will achieve the objectives of the Framework Decision.
28. In Trepac v the Presiding Judge of the County Court in Trencin, Slovak Republic [2006] EWHC 3346 (Admin), this court had to consider a European arrest warrant in which a single sentence of imprisonment was recorded for two separate offences. The court rejected the appellant's submission that the warrant was defective. The court noted, as was the case, that the standard form warrant, annexed to the Framework Decision, provided for separate offences to be listed, but for a single custodial term to be recorded.
29. In Pilecki v Circuit Court of Legnica, Poland [2008] UKHL 7; [2008] 1 WLR 325, two European arrest warrants were in issue. Each warrant was for multiple offences, but recorded a single global sentence. The first warrant recorded a sentence of 14 months imprisonment. The second warrant recorded a sentence of 12 months imprisonment. Because of the method of computation used by the Polish court, it was not possible to say what individual sentences were attributable to each of the offences comprised in the first warrant, or to each of the offences comprised in the second warrant. It was, however, clear, from the further information provided by the Polish court, that the sentences attributable to some of the individual offences in each of the warrants were less than four months. The House of Lords held that both of the warrants were valid and should be enforced.
30. The reasoning of the House of Lords in Pilecki is set out in the speech of Lord Hope, with which Lord Bingham, Lord Scott, Lord Brown and Lord Neuberger agreed. Lord Hope noted that section 2(6)(e) of the 2003 Act (as amended by the 2003 Order) permitted a single sentence to be specified for more than one offence. He also noted that this interpretation of section 2(6)(e) accorded with the decision of this court in Trepac and it matched the wording of the annex to the Framework Decision. At paragraph 34 of his speech Lord Hope said this:

34. The problem lies only in the wording of section 10 as modified in the case of multiple offences. Section 10(2) requires the judge to decide whether "any of the offences" specified in the Part 1 warrant is an extradition offence. 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. If it does, he must answer the question in subsection (2) in the affirmative and proceed to section 11: section 10(4). The information on which this decision is to be based must be found within the Part 1 warrant itself: section 2(6)(e). Further information such as that which was made available in this case will be irrelevant to his decision on this issue."

31. The House of Lords in Pilecki did not have to consider the specific problem which arises in this case, namely multiple offences, one of which does not satisfy the dual criminality test. This problem has been considered in two recent decisions of the Divisional Court, namely Wiercinski v 2nd Division of the Criminal Circuit in Olsztyn, Poland [2008] EWHC 200 (Admin) and Kucera v District Court of Karvina, Czech Republic [2008] EWHC 414 (Admin); [2009] 1 WLR 806. In each of these cases the European arrest warrant referred to multiple offences, one of which did not satisfy the requirement of dual criminality. The appellants in both cases argued that the sentence imposed for the offence, or offences, which did satisfy the requirement of dual criminality was unknown. Therefore, the conditions of the 2003 Act could not be satisfied. In Wiercinski that argument was successful and this court ordered that the appellant be discharged. In Kucera, however, the same argument was unsuccessful and this court ordered that the appellant be extradited to Poland.
32. Unsurprisingly, Mr Atlee relies upon Wiercinski and contends that Kucera was wrongly decided. Mr Sternberg relies on Kucera and contends that Wiercinski was wrongly decided. Mr Sternberg also points out that the court in Wiercinski did not have the benefit of seeing the House of Lords' decision in Pilecki, since the speeches in Pilecki were delivered three weeks after judgment was given in Wiercinski. However, it should also be noted that the House of Lords in Pilecki was upholding the Divisional Court's decision, and that decision was available to the court in Wiercinski.
33. In order to determine the present appeal, I must decide which of the two cases, namely Wiercinski and Kucera, to follow.
Part 5: Decision
34. In addressing the rival submissions of counsel I must go back to the provisions of the 2003 Act and interpret those provisions, so far as possible, in a manner which will achieve the objectives of the Framework Decision: see the reasoning of the European Court of Justice in Pupino. The objectives of the Framework Decision are helpfully summarised in Dabas: see in particular the passage quoted above.
35. I must also bear in mind, as Mr Atlee points out, that the preamble to the Framework Decision at paragraph 8 envisages that there will be independent judicial consideration of the issue of surrender in the jurisdiction where the arrest warrant is being enforced.
36. The first stage of the procedure under Part 1 of the 2003 Act is to determine whether the document presented to the court is a "Part 1 warrant". In conviction cases this exercise involves examining the purported warrant against the provisions of section 2(5) and section 2(6) of the 2003 Act. Particulars of the conviction and of the sentence must be set out. It is not necessary at this stage to determine whether the offence or offences listed constitute "extradition offences". That matter falls for decision at the second stage of the process.
37. In the present case the District Judge held that the European arrest warrant satisfied the requirements of section 2. The fact that a single sentence was specified for three different offences did not invalidate the warrant. That decision was plainly correct: see the reasoning of this court in Trepac and the reasoning of the House of Lords in Pilecki.
38. The next stage of the inquiry is that set out in section 10 of the 2003 Act, namely to decide whether the offence specified in the warrant is an extradition offence. In this case, because more than one offence is specified, it is necessary to apply section 10 of the 2003 Act as modified by the 2003 Order. Thus it is necessary to consider whether any of the three offences specified is an extradition offence.
39. The first two offences listed would both be crimes in England and Wales. Thus they satisfy the dual criminality test in section 65(3)(b) of the Act. Turning to section 65(3)(c), it is not possible to tell what specific sentence has been attributed to either of the first two offences. At first sight this omission may be thought fatal, as held by this court in Wiercinski. However, such an approach would raise technical obstacles to extradition between the UK and Poland and thus would tend to thwart the objectives of the Framework Decision.
40. In my view it is implicit in the reasoning of the House of Lords in Pilecki that the court should disregard the fact that individual offences, listed in the European arrest warrant, do not satisfy the definition of "extradition offence" if (a) the total sentence exceeds four months and (b) some of the offences listed satisfy the requirements of section 65. In this regard I agree with the reasoning of Swift J in Kucera at paragraphs 51 to 57 of her judgment. Accordingly, I shall follow the decision of this court in Kucera. I shall not follow the decision in Wiercinski.
41. For the reasons set out above, this appeal is dismissed.