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
		19 December 2012

1. MR JUSTICE IRWIN: This is an appeal from a decision of District Judge Arbuthnot made on 21 September this year ordering the extradition of the appellant to the District Court of Czestochowa in Poland.
2. The relevant offence on which extradition is sought would, in our legal terminology, be described as threats to kill. It took place on 12 January 2004. The criminal judgment of the provincial court was promulgated on 7 October 2004 and a 10-month custodial sentence was passed which, at that stage was suspended.
3. The additional information provided in this case shows that the sentence was ordered to be activated in 2007. The European Arrest Warrant was issued on 11 February 2010, certified on 6 September 2011, and the appellant was arrested on 26 April of this year. He appeared for the first time on 27 April and then the matter proceeded to a hearing as I have already indicated.
4. According to the noted judgment helpfully provided by, as she now is, Deputy Senior District Judge Arbuthnot, dealt with the two points which appear to have been given emphasis below. Firstly that extradition was unjust by reference to the passage of time and, secondly, a point arising from Article 8 of the European Convention of Human Rights which was said to preclude extradition. Those points are not taken on appeal.
5. Mr Rhodes, who did not appear below, says that additionally, what was argued below and is therefore open to him to argue here, is that this appellant is liable to face a further sentence if he is extradited. He is in agreement Mr Stansfeld who appears for the respondent, that the warrant, on the face of it, is not ambiguous and does provide all of the relevant facts, satisfies all of the formal requirements of the legislation and the point does not arise from the face of the warrant itself. Rather, it arises from a combination of the further information provided by the requesting judicial authority, in a letter of 19 June 2012 and from the note of evidence made by the District Judge of evidence given by the appellant himself in the course of the hearing. The relevant passage in the letter, appearing on the first page, recites the judgment of 2004 and the 10-month deprivation of liberty penalty. The letter carries on:

"On 3 January 2007 the probation officer found a motion in the court for an order to execute the penalty of deprivation of liberty stating that the convicted had committed another offence (case number IVK 1086/05) and also failed to pay the amount due to the court in the aforesaid case. The probation officer informed the court that the convicted was at that time serving the sentence to deprivation of liberty imposed in case number IIIK 1728/01.

By the decision of 2 April 2007 the District Court of Law in Czestochowa on the probation officer's motion ordered the execution of the condition of suspended sentence. The reason for the reactivation of the suspended sentence was the fact that during the probation period the appellant committed another offence, namely in case number IVK 1086/05, he was sentenced for an offence against article 288(1) of the penal code by the judgment of the District Court of Law in Czestochowa of 6 March 2006 and also paid the amounts due to the court."

6. On the face of it, therefore, the further information provided implicates this appellant with guilt in three cases, but does not make clear that there is any outstanding penalty. The letter does not suggest that extradition is sought in relation to any of the other offences. Those are mentioned only as an explanation for the activation of the penalty for which extradition is sought.
7. The passage in his client's evidence to which Mr Rhodes draws attention really consists of one central paragraph where the defendant, the appellant, said this:

"The defendant was cross-examined on behalf of the IJA by Mr Alan. Was asked about the offence on the EAW. The offence is in 2004 and leads to a suspended sentence in October 2004. Attached to that suspension, he agreed he was required to make payments and also there was a condition that he would not get into any more trouble. The defendant explained that the reason it was activated in 2007 was that he had got into trouble by possessing a small amount of cannabis. He was tried for that offence. That was before the other sentence. He had served a sentence in relation to the marijuana but he did not remember what it was."

8. Mr Rhodes advances the argument, partly based on his enterprising use of Google translation facilities, that Article 288 relates to what we would call criminal damage and that therefore, the sentence which was being served by his client at the time the probation officer filed the motion before the District Court of Czestochowa in January 2007, cannot have been a cannabis offence, as the appellant's evidence before the District Judge suggests. Therefore, it is unclear, says Mr Rhodes, what happened and whether there are in fact outstanding sentences in relation to either or both of the two other matters recited in the letter. He suggests not that his client was misleading the court but that he was confused. Therefore, the extradition here may lead to other sentences being served.
9. Mr Stansfeld's response firstly, on the facts, is that that is wrong. There is no ambiguity, that the position on the history is reasonably clear and that there is no indication from the further information provided that the appellant will be at risk of other penalties even if he is extradited. But he goes on to say that the problem does not arise in any event because the specialty rule means that it will only be lawful for the Polish Judicial Authority, if they achieve extradition, to execute upon this appellant the penalty for which extradition is sought in the warrant. He relies upon the lack of any formal failure or ambiguity in the warrant itself and has taken the court both to the Framework Decision which underpins the specialty rule and to the provisions of section 54 of the Extradition Act 2003. That is the provision whereby a judicial authority, who have successfully achieved extradition of a given individual, may seek the approval of the designated court, that being Westminster Magistrates' Court, to execute another sentence upon that individual in addition to the sentence for which extradition is achieved. Absent such approval, it would be a breach of the legal obligations of the requesting judicial authority and a breach of the Framework Decision to impose any such penalty. It seems to me that that is a complete answer to the point raised by Mr Rhodes, even if he were right as to the facts.
10. This is not a case which is a proper parallel of the position set out in Echimov v Romania [2011] EWHC 864 (Admin) where Davies J was confronted with the situation that, although one offence only was recited on the face of the relevant European Arrest Warrant, two sentences were recited and so it was arguable there was a risk that the Romanian judicial authority, having achieved extradition on that warrant, would seek to impose both sentences. That is a different situation, properly to be distinguished from this. For those reasons, this appeal fails.