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
		02/11/2012

Mr Justice Irwin:

1. The Appellant Dawid Krzeminski is seeking to appeal his extradition ordered by Deputy Senior District Judge Wickham in the Westminster Magistrates Court on 5 March 2012. The factual background can be summarised as follows.
2. The Appellant is a Polish national born in 1974. On 5 October 2000, he was the driver in a fatal car accident in which his then partner was killed. Proceedings were taken against him and after three hearings before the Polish court at first instance in Bydgoszcz, he received a sentence of 2 years and 6 months imprisonment on 14 January 2002.
3. According to extraneous material served in the proceedings at which I have looked de bene esse, the sentence was varied on 11 September 2002 following the Prosecutor's appeal and a 4 year sentence of imprisonment was substituted.
4. On 7 December 2005 a European Arrest Warrant was issued numbered "III Kop10/05". This warrant recited a 4 year sentence of imprisonment from the Regional Court in Bydgoszcz. It appears to have been accompanied by extraneous material disclosing the original sentence of 2 years 6 months and citing the original date of sentence of 14 January 2002. Extradition was sought on the basis of that warrant in 2011 and appealed to the administrative court. In the face of the appeal the warrant was withdrawn and the Appellant discharged.
5. On 1 December 2011 a second European Arrest Warrant was issued under the same reference number 111 Kop10/05. The certificate was issued by SOCA on 28 December 2011 and the Appellant was arrested on 17 January. The relevant passage in this second European Arrest Warrant reads:

"2. Length of the custodial sentence or any other detention order imposed:

4 years of deprivation of liberty – judgment of the regional court in Bydgoszcz dated January 14, 2002 in case files reference 111 K1801/00.

3. Remaining sentence to be served.

4 years of deprivation of liberty – judgment of the regional court in Bydgoszcz dated January 14, 2002 in case files reference number 111 K1801/00."

6. The matter came before DSDJ Wickham on 5 March. A note of her judgment has been prepared. The relevant part of this note reads as follows:

"2. The Defendant was represented at trial and maintains that at the end of the trial he received a longer term of imprisonment than that set out on the EAW……

3. The next point taken is under Section 2(6)(b)(e), as it is said that the particulars of conviction and sentence are inadequate. It is said that the sentence of 4 years was imposed on a later date than the 14^th January 2002.

4. The purpose of the EAW scheme is to speed up the extradition process. Therefore a great amount of detail need not be given. Whilst it is not disputed that 4 years is indeed the outstanding sentence, it is the method by which this is set out which [counsel] says is not section 2 compliant. I disagree. I find this EAW to be section to compliant."

7. Following a change of legal representation on behalf of the Appellant, his appeal was re-founded on a single ground redrafted as follows:

"The District Judge was wrong to conclude that the EAW was compliant with Section 2 of the Extradition Act 2003 in the following way:

i. That the sentence of 4 years imprisonment is incorrect, the correct sentence being one of 2 years and 6 months imprisonment as shown by the original judgment of the respondent. The EAW does not therefore comply with section 2(6)(e) of the Act."

8. As I have already mentioned, there has been extraneous information in this case which I have read de bene esse. The important extraneous information consists of two versions of the "Note of Sentence" on behalf of the Republic of Poland" in each case dated 14 January 2002. One version recites what appears to have been the original sentence of 2 years and 6 months and another recites the sentence subsequently substituted of 4 years. As previously mentioned the extraneous information indicating the substitution of 4 years imprisonment shows that judgment as being dated September 11 2002.
9. It is agreed that in the course of the proceedings before DSDJ Wickham the Appellant conceded that the effective sentence in Poland was 4 years. Putting the matter shortly, Mr Keith for the Appellant did not submit to me that the sentence to be served was other than 4 years. Once refined, his submission to me was that the EAW was defective in giving particulars of the sentence concerned because it cited the wrong date on which the sentence was passed.
10. Section 2 of the Extradition Act 2003 sets out the requirements of the contents of the EAW for present purposes the relevant passage is Section 2(6)(e) which requires a recital of the:

"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."

As is well known, the requirements of an EAW are mandatory. As Lord Hope of Craighead in Office of King's Prosecutor, Brussels –v- Cando Armas [2006] 2 AC:

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

11. The nature of the requirements of an EAW were the subject of further helpful comment by Ouseley J in Srama –v- The District Judge in Bydgoszcz, Poland [2010] EWHC 3320 (Admin) where the learned judge stated:

"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."

12. A further question which arises here is whether it is permissible to have regard to extraneous material in order to determine the correctness or otherwise of the sentence specified in the warrant. This question arose in Assange –v – Swedish Prosecution Authority [2011] EWHC 2849 (Admin). In that case the Appellant contended that the warrant did not provide a fair and accurate description of the conduct alleged against him and thus he argued that he failed to comply with the requirements of Section 2.
13. In that case, the contention was rejected by Sir Anthony May PQBD in the following terms:

"69. it is always possible, as Murua [Murua and Another –v- London Borough of Croydon (2002) 5 CCL Rep 51] demonstrates, that there may be circumstances in which extraneous material should be admitted without undermining the principles underlying the Framework Decision. Such circumstances will be exceptional and therefore are likely to be very rare, given those underlying principles. In our view, those circumstances will not arise where the EAW is clear on its face and the evidence sought to be adduced does not show that the case actually being advanced by the prosecutor is different to the case set out in the EAW. Such circumstances will normally only occur where there has been a fundamental error or fundamental unfairness or bad faith on the part of the court or prosecutor in the issuing state."

14. It seems to me that this appeal should fail on two complementary grounds. Firstly, the Appellant has failed to demonstrate that there is any fundamental error, unfairness or bad faith which should permit of the admission of this extraneous material. Secondly, even were it to be admitted, it seems to me that it does not touch the validity of the warrant. The sentence here is properly particularised. It is a sentence of four years. For these purposes it seems to me that the date on which the variation of sentence took place does not undermine the validity of the particulars of the sentence concerned.
15. For those reasons this appeal is dismissed.