Neutral Citation Number: [2013] EWHC 1893 (Admin)
Case Nos: CO/7146/2013, CO/4802/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/07/2013

Before :

MR JUSTICE CRANSTON
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Between :

	Bartolomiej Polomski	Claimant	
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	Westminster Magistrates' Court	Defendant	
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The Regional Court in Gdansk, Poland
Respondent/
  Interested Party
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Alun Jones QC (instructed by Wells Burcombe LLP) for the Claimant
Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent/Interested Party

Hearing dates: 17 June 2013
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Judgment

Mr Justice Cranston: 
1.	This case concerns the application in the context of extradition of the new Tariff expired removal scheme.  That scheme was introduced for foreign national prisoners serving an indeterminate sentence, either imprisonment for life or imprisonment for public protection (“IPP”). It allows those prisoners who are confirmed by the Home Office to be liable to removal from the United Kingdom to be removed from the country from the date their tariff expires, without reference to the Parole Board.
2.	In this case the appellant is serving an IPP sentence for offending committed in this country.  He contends that he should not be removed to Poland under a European Arrest Warrant to face trial for offences committed there until the expiry of his IPP tariff, which will fall less than a year away.  Otherwise he will have to return here to serve his IPP sentence.  The case arises both as a statutory appeal and by way of a judicial review.  Before the hearing I directed that the judicial review be a rolled up hearing, so that both the permission and substantive stages could be heard at the same time.   
Background 
3.	The background is that the appellant is serving an IPP sentence. He is being held at HMP Wandsworth, awaiting the outcome of these proceedings, having been held initially at HMP Birmingham.  While in prison the appellant has fractured his elbow.  IPP sentences require the direction of the Parole Board for the person to be released.  The person may not be released after serving the minimum term (the so called tariff) if the Board considers that he is still a danger to the public. Important in the Parole Board’s assessment of risk is a  person’s satisfactory completion of appropriate rehabilitative courses designed to reduce that danger. A Parole Board hearing in the appellant’s case is scheduled in May 2014.
4.	The appellant’s IPP was imposed after he pleaded guilty on 17 January 2011 at the Stafford Crown Court to an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. He was sentenced on 24 May 2011.  The minimum term was fixed at 1,092 days, minus 125 days served on remand.  He had struck the brother of one of his friends from behind with a pan and then attacked him with a kitchen knife.  The victim suffered severe lacerations, a depressed skull fracture and lasting psychological damage.  The attack was unprovoked and the appellant could offer no explanation for it.  There was an element of premeditation since he persuaded the key witness to leave the premises just before the attack.  
5.	Meanwhile a European Arrest Warrant had been issued on the 4th of February 2011 by the Regional Court of Gdansk, Poland, a category 1 territory under the Extradition Act 2003 (“the 2003 Act”). The warrant is for an offence of murder, allegedly committed in 2010, two offences of theft, also allegedly committed that year, and an offence of fraud, allegedly committed the previous year. The Serious Organised Crime Agency (SOCA) certified the warrant the following month. The appellant was arrested under it on the 7th of October 2011 at Westminster Magistrates’ Court, he having been produced from HMP Wandsworth where by this time he was serving the IPP sentence. On 7 October 2011 his case was adjourned under section 8B of the 2003 Act.  It was adjourned again on 5 April 2012.
6.	On 3 August 2012 the Polish Judicial Authority requested the appellant’s temporary surrender to try him for the offences in the warrant, given their “salience”.  On 18 September 2012 it provided undertakings – that he will be detained until completion of the proceedings in Poland and then be returned to the United Kingdom to serve the sentence imposed at the Crown Court.  In October 2012 the Judicial Authority confirmed that the time the appellant spent in custody in Poland depended on the time served in custody in Britain.   After this appeal was lodged the Judicial Authority confirmed that it would attempt to try the appellant and return him within 6 months, by 31 December 2013. 
7.	The appellant’s offender supervisor prepared a sentence planning and review report on 21 January 2013.  It recommended that the appellant’s suitability be assessed for three offender behaviour programmes.  The report explained that the appellant was a category C prisoner and had achieved enhanced status.  The report concluded that he was held in high regard by prison staff.  
8.	At the hearing before Senior District Judge Riddle at Westminster Magistrates’ Court on 15 April this year, it was submitted on behalf of the appellant that the proceedings should be adjourned until the end of the tariff period under the IPP. The submission was that, if an order for temporary surrender were made, the appellant would be deprived of the opportunity to complete the necessary rehabilitative courses required for his release under the  IPP sentence, and this would result in a disproportionate interference in his rights under article 5 (1) of the European Convention on Human Rights (“ECHR”).  The judge refused the adjournment.  At the hearing the appellant gave evidence that he had not begun any courses, since he had had first to learn English.  He also gave evidence about his elbow injury.  It was submitted that surrender should not occur for the additional reason that he was soon to have an operation on it.
9.	In a reserved judgment on 18 April the judge said that there was no evidence, despite the earlier adjournment of the case, as to the position with the IPP requirements. It was unclear whether the appellant would be able to satisfy these so as to justify release. In particular it was unclear whether plans for his release could proceed while he was awaiting extradition.  His extradition was sought on a very serious charge and that had to feature in considering proportionality under article 5(1).  It was entirely proportionate to order his extradition. The judge noted that there was no independent evidence that an operation on the appellant’s arm was imminent.  Thus it would not be unjust or oppressive to extradite him. Moreover, there was no evidence that the operation could not be performed in Poland.  In any event it could be performed here on his return after the time spent in Poland for his trial.  The judge ordered the appellant’s extradition and his temporary surrender in line with the Polish undertakings.  
10.	There was an offender assessment (“OASys”) report dated 17 April 2013.  It was not before the judge.  The report notes that in prison the offender will be referred by his offender supervisor for education courses and English language lessons.  There are no offending behaviour programmes in HMP Wandsworth.  The report records the appellant’s drug and alcohol abuse.  It assesses him to be a high risk to the public.  The appellant had said that he wishes to address the underlying issues to his offending.
11.	After the hearing of the appeal before me there was an email from the prison chaplain at HMP Wandsworth that the appellant is undertaking a victim awareness course run by the Prison Fellowship, which he will shortly complete. 
12.	The appeal to this court was lodged on 24 April 2013.  Judicial review of the judge’s refusal to adjourn the extradition hearing was received in the Administrative Court on 11 June 2013.  These and the skeleton argument for the hearing focused on article 5 and the appellant’s health (the operation on his elbow).  An amended skeleton argument, lodged just before the hearing, raised for the first time the Tariff expired removal scheme for foreign national prisoners.  It was this which became the focus of Mr Jones QC’s submissions when, at short notice, he appeared before me for the appellant (original counsel being unavailable).  Mr Jones QC concentrated his fire on the judge’s refusal to adjourn.  
Tariff expired removal scheme
13.	The Tariff expired removal scheme was introduced under section 119 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 for foreign nationals serving indeterminate sentences once they have completed the minimum term tariff set by the court.  The Secretary of State may remove prisoners from the United Kingdom whether or not the Parole Board has directed their release.  Section 119 introduced sections 32A and 32B into the Crime (Sentences) Act 1997 (“the 1997 Act”).  The relevant part of section 32A(1) is as follows:
“32A Removal of prisoners liable to removal from the United Kingdom.
(1) Where P – 
(a) is a life prisoner in respect of whom a minimum term order has been made, and 
(b) is liable to removal from the United Kingdom,
the Secretary of State may remove P from prison under this section at any time after P has served the relevant part of the sentence (whether or not the Parole Board has directed P’s release under section 28) …”
Under section 34 of the 1997 Act references to life sentences include IPP.  “Relevant part” under section 28 is the minimum term the court has ordered the person to serve.  Section 32 A(5) defines a person “liable to removal from the United Kingdom” by reference to section 259 of the Criminal Justice Act 2003.  That provides as follows: 
“259 Persons liable to removal from the United Kingdom
For the purposes of this Chapter a person is liable to removal from the United Kingdom if— 
(a) he is liable to deportation under section 3(5) of the Immigration Act 1971 (c. 77) and has been notified of a decision to make a deportation order against him, 
(b) he is liable to deportation under section 3(6) of that Act, 
(c) he has been notified of a decision to refuse him leave to enter the United Kingdom, 
(d) he is an illegal entrant within the meaning of section 33(1) of that Act, or 
(e) he is liable to removal under section 10 of the Immigration and Asylum Act 1999 (c. 33).”
A foreign national subject to an extradition order does not fall within any of these categories by virtue of that order alone.  
14.	An instruction regarding the Tariff expired removal scheme was issued by the Ministry of Justice, National Offender Management Service, on 2 May 2012.  In an appendix there is a fleeting recognition that those subject to extradition proceedings may fall within the scheme.  Following the appeal hearing a member of the Public Protection Casework Section in the Ministry of Justice confirmed that the appellant is eligible to be considered for removal under the scheme even if subject to extradition.  However, before persons can be considered, he says that Immigration Enforcement at the Home Office need to confirm that there are no barriers to removal.  Cases can be approved for the scheme prior to the tariff expiry date but offenders cannot be removed under it before that date.  He explains that the earliest the appellant could be removed under the scheme would be 20 May 2014. 
The appeal
15.	Mr Jones QC submitted that, in light of the Tariff expired removal scheme, the judge’s refusal to adjourn was Wednesbury unreasonable.  If the judge had known about the scheme the rational course would have been to adjourn the matter until a few days before 20 May next year.  At that point the appellant would have been eligible for removal under the scheme.  That would have meant an effective end to his domestic sentence.  Whether or not he is convicted in the Polish trial he would not face return to this country to complete his IPP.  If he is returned now, none of the period spent on remand in Poland will count towards the sentence here unless he is acquitted: Extradition Act 2003, section 59(4).  There is no obvious urgency in his return to Poland at this point.  The Polish Judicial Authority has dragged its heels and had not given the requisite undertakings for his temporary surrender for trial until September/October last year.  The European Arrest Warrant had been issued well over 18 months previously.  The period from now until May 2014, when he could be removed under the scheme, was less than a year.  That delay could not have any significant impact on the conduct of his trial, such as witnesses becoming unavailable.  On the other hand to send him to Poland now would mean his inevitable return to this country to serve the IPP.
16.	None of this persuades me that the judge was wrong.  The Tariff expired removal scheme was not before the judge, although the legislation has been in force since 1 May 2012 and the Ministry of Justice Instruction was published the following day.  Even if he had considered the scheme, it is difficult to see that the judge would have drawn a different conclusion.  There is nothing definite about the scheme’s application to this appellant.  Section 32A(1) applies to those liable to be removed from the United Kingdom.  The categories defined as liable to removal by section 259 of the Criminal Justice Act 2003 do not automatically include foreign national prisoners whose extradition is sought or who are subject to an extradition order.  That is confirmed by the official of the Ministry of Justice, whose assertion that the appellant falls within the Tariff expiry removal scheme is not unqualified.  It is not clear what the Home Office might consider as barriers to removal, what criteria might apply and how long the process might take.  In other words, it is not definite that the appellant will be removable under the scheme on 20 May 2014.  
17.	Moreover, there is the weighty public interest in fulfilling extradition obligations.  The appellant is wanted for trial for murder, the most serious crime in the criminal calendar.  As the judge concluded, there is an overwhelming public interest in ensuring that his trial in Poland is conducted sooner than later.  There was nothing irrational in the judge’s decision to refuse to adjourn the case and order his extradition: see Handa v Bow Street Magistrates’ Court [2004] EWHC 3116 (Admin), per Field J (with whom Tuckey LJ agreed).  
18.	I dismiss the extradition appeal.  Because of the importance of the matter I will grant permission to apply for judicial review but dismiss the claim.