QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Lukasz Zakrzewski
|- and -
|District Court in Torun, Poland
- and -
Regional Court in Lodz, Poland
Ms. Katherine Tyler (instructed by Crown Prosecution Service) for the Respondents
Hearing dates: 25th and 26th January 2012
Crown Copyright ©
The Hon. Mr. Justice Lloyd Jones :
(1) Whether EAW 2 is invalid for a failure to comply with section 2(6)(e) of the Act because it fails to state the aggregate sentence imposed for the six offence to which it relates; and
(2) In respect of both warrants, whether his extradition is compatible with the appellant's rights under Article 8 ECHR.
(1) A three year suspended sentence in respect of offences of assault and robbery were subsequently activated due to a further offence.
(2) A four year suspended sentence in respect of robbery and theft.
(3) A three year suspended sentence in respect of theft.
(4) A four year suspended sentence in respect of theft.
In each case the sentence was later activated due to the commission of a further offence.
Ground 1: The second warrant is invalid because it fails to meet the requirements of section 2(6)(e).
"(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—
(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."
The effect of The Extradition Act 2003 (Multiple Offences) Order 2003 is that, unless the context otherwise requires, any reference in the Act to an offence (including an extradition offence) is to be construed as a reference to offences (or extradition offences).
"In reply to your letter of 12 May 2011 the…Regional Court in Lodz…hereby respectfully provides that on 19 April 2011 the…District Court in Grudziadz passed in respect of Lukasz Zakrzewski a valid cumulative sentence whereby the court combined the prison sentence imposed on the convict in all the judgements covered by the European Arrest Warrant executed by this court on 24th February 2010 i.e. the following judgements passed by:
1. …District Court in Grudziadz on 10 December 2003…
2. The…District Court in Grudziadz on 18 March 2004…
3. The…District Court in Swiecie on 28 May 2004…
4. The…District Court in Grudziadz on 14 February 2005…
Pursuant to the judgement passed, Lukasz Zakrzewski has been sentenced to a cumulative penalty of one year and ten months' imprisonment. The court was obligated to impose the said cumulative sentence pursuant to Article 569 section 1 Polish Criminal Procedures Code and Article 85 Polish Criminal Code. In accordance with the provisions referred to herein above it is possible to impose a cumulative sentence if the offender has been convicted under valid judgements passed by various courts for two or more offences committed prior to the first judgement being passed, even if not in full force and effect, in respect of any of these offences. At that, it should be underscored that a cumulative sentence does not invalidate any of the single sentences covered by that cumulative sentence and its only effect is that instead of executing the single penalties of imprisonment imposed on the convict, a cumulative penalty is executed in the extent determined in the cumulative sentence. In other words, in connection with the cumulative sentence having been passed in respect of the convict, Lukasz Zakrzewski's situation, as compared with that which would exist if the cumulative sentence were not passed, is in as much more favourable that instead of serving the sentences passed in respect of each offence he will serve the cumulative prison sentence of one year and ten months for all the offences covered by the European Arrest Warrant executed by the…Regional Court in Lodz."
"…it should be underscored that a cumulative sentence does not invalidate any of the single sentences covered by that cumulative sentence and its only effect is that instead of executing the single penalties of imprisonment imposed on the convict, a cumulative penalty is executed in the extent determined in the cumulative sentence."
She then goes on to rely on Banasinski v District Court of Sanok (a Polish Judicial Authority)  EWHC 3626 (Admin) and Pietrzak v Regional Court in Wloclawek, Poland  EWHC 2138 (Admin) which establish that is not a requirement for the validity of a warrant that it state accurately the remainder of the sentence left to be served.
"The information that has been given in the European Arrest Warrants indicates that it is the practice in Poland for the sentencing court, in multiple offence cases, to aggregate the sentences that would have been appropriate for the offences if taken individually and to apply a discount from the total of the individual sentences to arrive at the overall sentence of imprisonment or detention that must be served." (At para 30).
Since the issue in the present case was not before the House of Lords it would be inappropriate to attach any significance to the words used by Lord Hope to describe the later order. However, he went on to conclude that a reference to that order was capable of satisfying the requirement of section 2(6)(e).
"...it seems to me that section 2(6)(e) does not present a problem. As modified, it requires 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". The singular use of the word "sentence" even in multiple offence cases, matches exactly the wording or the Annexed Framework Decision." (at para 33).
Similarly, in addressing the requirements of section 65(3) he considered that, if the other requirements are satisfied, all the judge need 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 (para 34). He concluded that the cumulative order satisfied that requirement. It follows that in that case the cumulative order was treated as a sentence imposed.
"The importance of the length of sentence that has been ordered, which is the requirement of Article 8.1, is that it is the length of sentence which has been ordered in this type of case which determines whether or not the offence in respect of which the appellant had been sentenced is one which falls within the meaning of an extradition offence for the purposes of section 65." (at paragraph 10).
Similarly in Pilecki Lord Hope observed:
"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." (at paragraph 28).
However, in order to fulfil this purpose, the information must relate to the current operative sentence and not to earlier sentences which have been subsumed in an aggregated order. In determining whether the requirement of section 65 is satisfied, the court needs to know the total length of time which the court of the requesting State has ordered must be served in prison. In the present case that is the aggregated order. In the absence of such information there is a danger that a court may proceed on the basis of earlier individual sentences and, in certain circumstances, may come to an incorrect conclusion as to whether the warrant relates to an extradition offence.
Ground 2: Article 8 ECHR
"It is difficult to make sense of his account of mental health symptoms. If his account is genuine then it is possible that he suffered from a psychotic episode with features of paranoia and persecutory delusions. However, the description he gives of psychotic symptoms is rather inconsistent. He also describes self harm and suicide attempts and the alternative explanation would be that he is suffering from personality disorder with a probable emotionally unstable, paranoid and antisocial traits. (sic) In support of the diagnosis of personality disorder is his account of significant neglect and emotional abuse during childhood coupled with early substance misuse and disruption to his education. He appears to have had a significant problem with offending behaviour in the context of polysubstance abuse and there is evidence of previous self harm.
It is important to note that without contemporaneous psychiatric records it is not possible to draw a firm conclusion about [his] reported previous episodes of mental health problems. However his clinical presentation and recent history are more suggestive of a young man with significant abnormal personality traits. In my opinion, the most likely diagnosis is that he has a combination of emotionally unstable, antisocial and paranoid personality traits. This would provide an explanation for his apparent pattern of repeated offending, polysubstance abuse and repeated episodes of self harm, all of which would be consistent with the diagnosis of personality disorder."