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
		11/11/2013

Lord Justice Richards : This is the judgment of the Court.

1. The court has before it four linked appeals, all involving persons whose extradition is sought pursuant to European arrest warrants ("EAWs") issued by judicial authorities in Poland. The cases are all governed by Part 1 of the Extradition Act 2003. Extradition is sought in each case for the purpose of serving a sentence following conviction. The sentence in question is in each case a single sentence (sometimes referred to as a composite, collective or aggregate sentence) imposed in respect of two or more offences, including one or more extradition offences but also including, at least arguably, one or more non-extradition offences. A number of issues arise as to the lawfulness of extradition in such circumstances, including the question whether the requested persons, if extradited, would be required to serve sentences relating in part to a non-extradition offence, thereby infringing the rules on specialty.
2. We propose to look first at the circumstances of each of the four appeals and to deal with some of the specific issues to which they give rise, before going on to examine the more general issues and to set out our conclusions in relation to each appeal.

The individual appeals

Brodziak

3. The extradition of Brodziak is sought pursuant to an EAW to serve a sentence imposed following conviction of three offences, namely (i) concealment of documents in the form of a driving licence; (ii) possession of a quantity of heroin; and (iii) supply of a quantity of heroin. A single sentence of 1 year 6 months' imprisonment was imposed for the three offences. The sentence was originally suspended for a period of four years but it was subsequently activated and became final and enforceable on 30 December 2003.
4. The extradition hearing took place before District Judge Zani at Westminster Magistrates' Court on 6 February 2013. It was agreed between the parties that offence (i) was not an extradition offence but that offences (ii) and (iii) were, and the District Judge gave effect to that by ordering Brodziak's extradition in respect of offences (ii) and (iii) alone.
5. An appeal against that order came before King J on 17 April 2013. At that stage three grounds of appeal were advanced: (1) the District Judge erred in finding that there were effective specialty arrangements in place between the UK and Poland; (2) he erred in finding that the warrant was valid within the meaning of section 2(6)(e) of the 2003 Act; and (3) extradition would be in breach of article 6 ECHR because the Polish court was not an independent and impartial tribunal.
6. The evidence for the appellant before King J included an expert opinion by a Polish attorney, Ewa Draga-Buchta, on matters relevant in particular to the specialty issue. The judge took the view that before any final decision was taken the requesting judicial authority should be asked to respond to the opinion. He therefore adjourned the case part-heard.
7. Pursuant to the judge's request, the CPS sought "clarification" from the requesting authority, which replied by letter dated 3 June 2013. The letter indicated that the custodial sentences for the individual offences had been 3 months in respect of offence (i), 6 months in respect of offence (ii), and 1 year in respect of offence (iii), and that the court "cumulated the individual custodial sentences and imposed on the convict a cumulative 1 year and 6 months custodial sentence", pursuant to articles 85 and 86 of the Polish Penal Code. The letter went on to refer to the consequences of that approach in the event of the appellant's extradition. I will deal with that when considering the specialty issue later in this judgment.
8. The appeal was subsequently released by King J and was directed to be heard by a Divisional Court together with the other appeals with which this judgment is concerned. At the hearing before us, Brodziak was represented by Mr Richard Clatyon QC, who came into the case at a very late stage and without the benefit of a representation order. He pursued the first two grounds (specialty and section 2(6)(e)) but not the third ground (breach of article 6). We will consider both those grounds below in the course of our discussion of the general issues.

Madej

9. The extradition of Madej is sought pursuant to three EAWs. We are concerned, however, only with one of those warrants since no appeal is maintained in respect of the other two. The relevant warrant seeks Madej's extradition to serve a 2 year sentence of imprisonment imposed following his conviction for two offences.
10. The first offence was an offence of assisting in the retention of stolen goods, in that "on 27th September 1998, in Piaseczno, he helped to hide a passenger car … which he acquired from unknown persons knowing that this vehicle had been possessed by a forbidden action to the detriment of Leszek Czerwosz".
11. The second offence is described in the warrant in these terms (we will use a translation, to which no objection is taken, which is later and better than the translation placed before the magistrates' court):

"In the period 1-9 June 1999 in Piaseczno, acting with premeditated intent, he acquired from unidentified persons the following belongings obtained as a result of a prohibited act: 5 decorative garden trees, a ceramic garden snail and a water hose worth in total: 187PLN to the detriment of Leszek Karewicz, as well as a beer cooler with two cylinders worth in total: 2,210PLN to the detriment of Dariusz Rutkowski."

12. The warrant states that the sentence for the first offence was 1 year 6 months' imprisonment, and for the second offence was 1 year's imprisonment, but that a collective penalty of 2 years' imprisonment was imposed.
13. Extradition was ordered on 1 May 2013 by a district judge sitting at Westminster Magistrates' Court. Madej was unrepresented at the hearing before the judge and does not appear to have challenged the proposition that both of the offences referred to in the warrant are extradition offences.
14. A single ground of appeal is now pursued before us (and we grant permission for the grounds of appeal to be amended for the purpose). In substance, it is that the district judge ought to have found that the second offence is not an extradition offence within section 65(3) of the 2003 Act, in that the requirement of dual criminality is not satisfied. If that ground succeeds, various consequential issues are raised: whether the court should order the appellant's discharge pursuant to section 10(3) in respect of the second offence; whether the court should then obtain information about the possibility of disaggregation of the sentence to ensure that the remaining offence is an extradition offence; and the consequences of not being in a position to disaggregate. Those issues go beyond the specific ground of appeal, but Mr Paul Garlick QC, who presented the case on behalf of Madej, was granted a representation order for leading counsel on the basis that he would cover the issues common to all the appeals, and the court is grateful to him for the assistance he gave on them.
15. The contention that the second offence is not an extradition offence is founded on the requirement in section 65(3)(b) of the 2003 Act that "the conduct would also constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom". The relevant offence under the law of England and Wales is that of handling stolen goods, contrary to section 22 of the Theft Act 1968. That offence requires four elements to be satisfied: (a) the goods were stolen, (b) the defendant handled the goods, (c) the handling was dishonest, and (d) the defendant, at the material time, knew or believed the goods to be stolen. It is accepted that elements (a) and (b) are disclosed by the warrant, but it is submitted that elements (c) and (d) are not: there is no allegation on the face of the warrant that the appellant was acting dishonestly or that he knew or believed the goods to be stolen. Whilst inferences can be drawn as to mens rea, the facts must be such as to impel that inference (see the judgment of the Divisional Court in Assange v Swedish Prosecutor [2011] EWHC 2849 (Admin), at para 57); and it is submitted that there is nothing within the particulars in the warrant which impels the inference that the appellant possessed the necessary mens rea in this case.
16. The CPS requested further information from the respondent judicial authority as to whether Madej knew or believed the property to be stolen or whether there was anything which made it obvious that the property must have been stolen. A letter dated 3 September 2013 from the judicial authority in response to the request includes the following:

"With reference to the goods stipulated in the second offence, for which Krzysztof Madej was also convicted, it is reasonable to assume that the convict was fully aware that the goods had been obtained through criminal activity.

Krzysztof Madej purchased the goods from people he did not know well, he knew however that the people did not run a business, in particular selling plants and equipment. The people came to him and proposed to sell him stolen goods, the convict agreed to without seeing the goods to be purchased. They were to be delivered directly to the convict's house.

We would like to stress that the circumstances of both offences indicate clearly that when committing them, the convict knew he was accepting items obtained through criminal activity.

All material circumstances concerning offences committed by Krzysztof Madej have already been provided in the documentation forwarded to you. In this letter we only indicate circumstances which prove the convict's knowledge of the origin of the goods and the vehicle."

17. Mr Garlick did not object to the court taking that letter into account, since the issue was not raised before the district judge and is being considered for the first time in this court. He did, however, submit that the contents of the letter amount to comment, not additional description, and that they do not add materially to the contents of the EAW itself. Although referring to this as a borderline case, he adhered to the contention that the conduct as described does not establish that the handling was dishonest and that the appellant, at the time he received the goods, knew or believed them to be stolen.
18. Once the facts are set out, the point itself is a very short one. We take the view that the description of the offence in the warrant, even taken by itself, is sufficient to impel the inference that the appellant had the requisite mens rea for the offence of handling stolen goods. But we are also satisfied that the letter of 3 September 2013 includes further information, not mere comment, and that it provides additional support for our view. Thus, it seems to us that the only reasonable inference to be drawn from the material before the court is that the handling was dishonest and that at the material time the appellant knew or believed the goods to be stolen. On that basis, the requirement of dual criminality in section 65(3) is satisfied and the second offence is an extradition offence.
19. It follows that the district judge was correct to order Madej's extradition in respect of both the offences set out in the warrant and that the appeal against his order must fail. The general issues discussed below will be relevant to this appellant's case only if we are mistaken in our conclusion that the second offence is an extradition offence.

Marczuk

20. The extradition of Marczuk is sought pursuant to an EAW to serve a sentence in respect of five offences: (i) handling stolen goods (a motor vehicle); (ii) handling stolen goods (another motor vehicle), (iii) driving a motor vehicle with excess alcohol, "having 0.35 milligram of alcohol per cubic decimetre of the breathed out air"; (iv) driving without due care and attention / dangerous driving; and (v) riding a bicycle with excess alcohol, "having 0.39 milligram of alcohol per cubic decimetre of breathed out air". A single, two year sentence was imposed on 4 October 2007 for those offences (the warrant gives no information about the sentences for the individual offences). The warrant states that the sentence of 2 years remains to be served.
21. Extradition was ordered by District Judge Snow, sitting at Westminster Magistrates' Court, on 18 May 2013. It appears that no issues were raised on Marczuk's behalf before the District Judge.
22. The following grounds of appeal are now pursued before us (and we grant permission for any necessary amendment for the purpose): (1) offences (iii) and (v) are not extradition offences, in that the test of dual criminality in section 65(3)(b) of the 2003 Act is not satisfied; (2) as regards the offences that are extradition offences, the English court is unable to disaggregate the sentence and there can be no guarantee that specialty protection can or would be respected if Marczuk were extradited; and (3) Marczuk has already been the subject of a final sentence for the conduct in question, and the custodial sentence that was subsequently imposed and is the subject of the warrant was imposed unlawfully.
23. As to ground (1), it is common ground that the court should proceed on the basis that offence (iii) is not an extradition offence. The offence of driving with excess alcohol under section 5 of the Road Traffic Act 1988 requires that the alcohol level must exceed 0.35 ml per 100 ml of breath, whereas the warrant refers only to a level of 0.35 ml. Nor is there any indication in the warrant that the appellant was driving "while unfit through drink" so as to amount to an offence under section 4 of the Road Traffic Act 1988. Because this issue was not raised in the lower court, no further information has been sought from the requesting judicial authority. In the circumstances it is accepted on behalf of the respondent judicial authority that the description of the offence in the warrant is insufficient to establish to the criminal standard that the conduct amounts to an offence under the law of England and Wales so as to satisfy the requirement of section 65(3)(b) of the 2003 Act.
24. The contention that offence (v) is not an extradition offence is, however, disputed. The law of England and Wales which is relied on is section 30(1) of the Road Traffic Act 1988, which reads: "A person who, when riding a cycle on a road or other public place, is unfit to ride through drink or drugs (that is to say, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the cycle) is guilty of an offence". It is submitted on behalf of the judicial authority that the court should find by way of inference that a person with 0.39 ml of alcohol per 100 ml of breath is unfit to ride a bicycle. We do not accept that submission. The statutory test is a high one, that the person is "incapable of having proper control of the cycle". We do not think that a breath/alcohol reading of 0.39 taken by itself is sufficient to impel the inference that the appellant was incapable of having proper control of the bicycle.
25. We therefore consider that neither offence (iii) nor offence (v) is an extradition offence. That leaves offences (i), (ii) and (iv) as extradition offences, in relation to which the issues of disaggregation and specialty under ground (2) need to be considered. We will deal with them as part of our general discussion below.
26. Ground (3) is based on two factual contentions put forward by the appellant in his proof of evidence. He insists first that he served 8 months in custody while held in pre-trial detention in Lublin in 2003, so that only 16 months of the 2 year sentence of imprisonment remains to be served. He also insists that for offences (iii) and (iv) he was sentenced to a fine, and he provides a copy of what is described as the "final" judgment of the Regional Court in Lublin, dated 1 August 2005, imposing such a fine. It is submitted that the 2 year sentence imposed on 4 October 2007, to which the warrant relates, must have been imposed in error or in the alternative may place the appellant in double jeopardy, and that in the absence of any information on the position from the requesting judicial authority the court should not order the appellant's extradition to serve a sentence that appears to have been imposed twice for the same conduct. There is no evidence that the sentence arose, for example, following a prosecution appeal or by way of amendment of a previous sentence.
27. Mr Caldwell's response to this, on behalf of the requesting authority, is that the court should proceed on the basis of the available information as set out in the EAW unless, applying the criteria in R (Government of the United States of America) v Bow Street Magistrates' Court [2007] 1 WLR 1157 (the Tollman case), the appellant can show that the abuse of process jurisdiction is engaged; but that requires compelling reasons, which are absent here, to show some manipulation of the process or a material irregularity.
28. The appeal is not advanced on grounds of abuse of process, and the matters relied on in ground (3) would not in our view get a case of abuse of process off the ground. We can see no justification for going behind the EAW in this case If the 2 year sentence referred to in the warrant is irregular in any respect by reason of previous events in the Polish courts, or if the appellant has already served part of that sentence, the matter can be taken up with the Polish court following his extradition. There is no reason to believe that he will lack an appropriate remedy under Polish law.

Dunec

29. The extradition of Dunec is sought pursuant to two EAWs, only one of which is in issue before us. That warrant seeks his extradition to serve a sentence in respect of three offences, namely (i) possession of marijuana; (ii) assaulting a police officer in the execution of his duty; and (iii) calling police officers names generally regarded as offensive. A single sentence of 2 years' imprisonment was imposed for those offences (the warrant gives no information about the sentences for the individual offences).
30. Extradition was ordered by District Judge Zani, sitting at Westminster Magistrates' Court, on 24 May 2013. The only point that was taken on the appellant's behalf in front of the district judge related to article 8 ECHR and has not been pursued before us.
31. The one ground of appeal now pursued (and for which we grant permission to amend if necessary) is that offence (iii) is not an extradition offence within section 65(3) of the 2003 Act, in that it does not satisfy the test of dual criminality. The point is conceded by the respondent judicial authority. Consequential issues are then raised on behalf of the appellant as to the lawfulness of extradition in respect of the other two offences if it is not possible to disaggregate the 2 year sentence. Again, we will deal with that as part of our general discussion below.

The general issues

32. We turn to consider the correct approach where extradition is sought for the purpose of serving a sentence in circumstances where a single sentence was imposed for multiple offences but one or more of those offences is not an extradition offence because the requirement of dual criminality in section 65(3)(b) is not satisfied in relation to it.
33. First, all parties agree that the court should discharge the requested person in respect of any offence which fails to satisfy the requirement of dual criminality, and that extradition should be ordered only in respect of the offence or offences satisfying the requirement. This was the approach taken by Irwin J in R (Tokarski) v Circuit Court in Swidnica, Poland [2012] EWHC 2247 (Admin). It seems to us to accord with principle and with the wording of section 10 of the 2003 Act, as modified by the Extradition Act (Multiple Offences) Order 2003 in respect of cases where there is more than one offence. That section, as modified, 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 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."

The natural reading of the section is that discharge must be ordered in relation to any offence that is not an extradition offence, and that the judge must move to the next step only in respect of offences that are extradition offences.

34. There is, however, a line of authority to the contrary effect. In Zboinski v Circuit Law Court in Swidnica, Poland [2011] EWHC 558 (Admin), Jackson LJ upheld an extradition order relating to three offences in an EAW, one of which did not satisfy the test of dual criminality. He stated (at para 40):

"In my view it is implicit in the reasoning of the House of Lords in [Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325] 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 v District Court of Karvina, Czech Republic [2009] 1 WLR 806] at paragraphs 51 to 57 of her judgment. Accordingly, I shall follow the decision of this court in Kucera …"

That decision has been followed recently by Keith J in Mikolajczak v District Court in Kalisz, Poland [2013] EWHC 432 (Admin), in which the judge said at para 13 that he too agreed with the reasoning of Swift J in Kucera and that it followed that, to the extent that there could be said to be a difference of approach between Zboinksi and Tokarski, the former was to be preferred.

35. We too agree with the reasoning of Swift J in Kucera. Richards LJ was a member of the constitution which decided that case, and he expressed his agreement at the time. We do not accept, however, that the case has the effect for which reliance was placed on it in Zboinski and Mikolajczak. The key point to note about Kucera for present purposes is that, although the EAW related to a single sentence imposed in respect of two offences (theft, and failure to pay maintenance), it was accepted by the requesting authority that one of the two offences did not meet the test of dual criminality and was therefore not an extradition offence; so that extradition was sought and ordered only in respect of the other offence, which did meet the test of dual criminality. That is spelled out at para 16 of Swift J's judgment. The discussion at paras 51-57 of the judgment proceeded on that premise and was concerned with the separate question (to which we will come in a moment) of its implications for the offence that did meet the test of dual criminality. At para 57, for example, having referred to the decision in Pilecki, she stated: "The question is whether the position is different if, as in this case, one of the offences specified in the warrant has failed the dual criminality test and cannot form the subject of extradition" (emphasis added). With respect to those who have read her judgment differently, we do not accept that it provides any support for the proposition that the court should disregard the fact that an offence to which the warrant relates does not satisfy the dual criminality test. We repeat our view that if, in a case where section 65(3) applies, an offence does not satisfy the test of dual criminality, the court should order discharge in relation to it.
36. We turn next to consider the implications of the fact that a warrant refers to a single sentence that was imposed for multiple offences, one or more of which is a non-extradition offence in respect of which extradition will not be ordered. This was the question addressed in Kucera.
37. In Pilecki the House of Lords dealt with the case of an aggregated sentence for a number of offences, each of which met the dual criminality test. It held first that this was capable of meeting the requirement in section 2(6)(e) (read with section 2(2)(b)) of the 2003 Act that particulars be given "of the sentence which has been imposed under the law of the category 1 territory in respect of the offences, if the person has been sentenced for the offence". It held secondly that in a case to which section 65(3) applies it is unnecessary for the judge to ask himself whether the sentence that was passed for each offence satisfies the requirement in section 65(3)(c) that "a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed in the category 1 territory in respect of the conduct", it being sufficient to determine whether the sentence for the conduct taken as a whole meets the requirement that it is a term of at least four months. For those two points, we refer in particular to paras 33-34 of the opinion of Lord Hope.
38. The point of distinction in Kucera, as we have already indicated, is that one of the offences for which a single sentence was imposed had failed the dual criminality test and for that reason could not form the subject of extradition. But the court applied the principles in Pilecki in concluding, first, that the requirement of section 2(6)(e) was met and, secondly, that the requirement of section 65(3)(c) was satisfied in relation to the offence that did meet the dual criminality test, even though the sentence was a single sentence imposed for the two offences. We will not set out the reasoning by which Swift J reached that conclusion, but the core of it is to be found in para 54 of her judgment as regards section 2(6)(e), and in paras 55-56 as regards section 65(3)(c).
39. The case advanced by Mr Clayton on behalf of the appellant Brodziak in relation to section 2(6)(e) (his ground (2)) is founded on the judgment of the Divisional Court in Wiercinski v 2^nd Division of the Criminal Circuit in Olsztyn, Poland [2008] EWHC 200 (Admin). In Wiercinski there was an aggregate sentence in respect of three offences, two of which were capable of being extraditable offences. The court held that it was not possible to identify, as required by section 2(6)(e), the term of imprisonment for each of those offences (per Latham LJ at para 14). The court in Kucera considered Wiercinski but took a different approach, as summarised above; and at para 57 of her judgment, Swift J observed that the court in Wiercinski did not have the advantage of having before it the decision of the House of Lords in Pilecki. The decision in Kucera has generally been followed on this point in later cases. We see no reason to depart from it now. Mr Clayton sought to derive assistance from para 2 of the judgment of Lord Sumption in Zakrzewski v District Court of Torun, Poland [2013] 1 WLR 324, where mention is made of the issues decided in Pilecki, but the passage is by way of background and contains nothing to cast doubt on Kucera. We therefore reject Mr Clayton's case in relation to section 2(6)(e).
40. Having explained why neither section 2(6)(e) nor section 65(3)(c) creates an obstacle to extradition in circumstances where the warrant refers to a single sentence imposed for multiple offences that include one or more non-extradition offences, we move finally to the issue of specialty, which proved in the event to be the most important issue developed in the arguments before us.

The issue of specialty

41. By sections 11(1)(f) and 11(3) of the 2003 Act, the court is required to discharge a requested person if his extradition to a category 1 territory is barred by reason of specialty. Specialty is the subject of section 17, which provides:

"(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.

(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if –

(a) the offence is one falling within subsection (3) …

(3) The offences are –

(a) the offence in respect of which the person was extradited …."

We will omit the various other possibilities catered for by the detailed provisions of the section. The essential purpose of the specialty requirements is to ensure that a person who is extradited will not be dealt with in the requesting state for any offence other than the offence or offences for which he is extradited.

42. As stated in Kucera at para 59, the burden is on the requested person, if raising this bar to extradition, to show on the balance of probabilities that appropriate specialty arrangements are not in place.
43. The United Kingdom has specialty arrangements with Poland by virtue of article 27(2) of the extradition Framework Decision (Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States), which provides that, subject to stated exceptions, "a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered".
44. At para 12 of his judgment in Wiercinski (cited above), Latham LJ set out a translation of article 607e of the Polish Criminal Procedure Code:

"1. A person surrendered in performance of a warrant cannot be [prosecuted] for offences other than those that formed the base for surrender or enforce the custodial sentence or other means involving deprivation of freedom imposed on that person for such offences.

2. The court that entered the absolute decision in the case can order enforcement of the penalty only for those offences, which formed the base for surrender of the wanted person …."

45. Those provisions are entirely consistent on their face with the protection of specialty in Poland. They are apt to ensure that, even where a single sentence has been imposed for multiple offences that include one or more non-extraditable offences, the sentence will be enforced only in so far as it relates to the offences for which the requested person has been extradited.
46. There is, moreover, a strong presumption that other Member States will act in accordance with their international obligations in respect of specialty. In Hilali v Central Court of Criminal Proceedings Number 5 of the National Court, Madrid [2006] 4 All ER 435, Scott Baker LJ referred to "a surprising submission that Spain is likely to act in breach of the international obligations to which it has signed up" (para 52). In Ruiz & Others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid [2008] 1 WLR 2798, Dyson LJ endorsed the approach in Hilali, stating:

"67. It is to be presumed that the Spanish authorities will act in good faith in the absence of compelling evidence to the contrary. They are trusted extradition partners and parties to the Framework Decision. They have incorporated the specialty rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of specialty.

68. Secondly, there is no compelling evidence that the Spanish authorities will act in breach of their specialty rule and article 27 of the Framework Decision. Castillo's case (which was governed by the Extradition Act 1989) does not provide such evidence. It appears that proceedings have not been completed. Even if Castillo's case were to be evidence of a breach of specialty, it would be a single instance. There is no other evidence. Moreover, if there has been a breach of specialty in that case, the defendant has his remedy in Spanish domestic law."

The need for compelling evidence of a breach of specialty arrangements was further emphasised in Arronategui v 1^st, 2^nd, 3^rd, and 4^th Sections of the National High Court Madrid, Spain [2012] EWHC 1170 (Admin), at para 47.

47. It is submitted on behalf of the appellants that a more cautious approach is called for in sentence cases, in particular in cases involving an aggregate sentence, than in cases where extradition is sought for the purpose of standing trial. For example, specific information about the possibility of disaggregating a sentence under Albanian law was provided to the court in Cokaj (aka Gashi) v Secretary of State for the Home Department, Government of Albania [2007] EWHC 238 (Admin). In Kucera (cited above) the court had before it a statement from a judge of the Czech court that some form of re-sentencing exercise would take place following extradition. In Ministry of Justice (Romanian Judicial Authority) v Bohm [2013] EWHC 1171 (Admin), Sir John Thomas PQBD (as he then was) stated obiter that "it would be extremely difficult to see how this court could allow the provisions in relation to specialty to be considered without some evidence in relation to how the Romanian Court would treat the sentence imposed" (para 19), though there is nothing in the judgment to indicate what, if any, consideration had been given to the line of authority referred to above.
48. We do not read either Cokaj or Kucera as laying down a different approach for sentence cases from the general approach vouchsafed by decisions such as Hilali, Ruiz and Arrronategui; and we do not think that the brief observation of the then President of the Queen's Bench Division in Bohm can justify a departure from that well established line of authority.
49. Accordingly, compelling evidence is in our view required to displace the strong presumption that the Polish authorities will act in accordance with their international obligations in respect of specialty, to which effect is given in article 607e of the Polish Criminal Procedure Code.
50. The only one of the four appellants who has placed evidence on this subject before the court is Brodziak. The key passage in the expert opinion adduced by Brodziak (see [6] above) reads:

"Merged penalty issued on the base of art 85 PCC cannot be dissolved unless the judgment is quashed in extraordinary proceedings which is not a case in these proceedings. The judgment is final and effective. If Mr Brodziak is returned to Poland, he would have to serve a sentence in excess of that appropriate for the offences relating to intoxicants."

51. In its request for clarification from the judicial authority in the light of that opinion, the CPS indicated that offence (i) was not an extradition offence and that the court would only consider ordering extradition in respect of offences (ii) and (iii). The request continued:

"In such circumstances the court would ordinarily assume that Mr Brodziak would not be required to serve any sentence in the requesting state in respect of offence (i) due to the operation of the speciality principle enshrined in the Framework Decision on the operation of the European Arrest Warrant.

However, in the present case Mr Brodziak has provided a legal opinion from a Polish lawyer … which suggests that the Polish court will not be able to disaggregate the sentence and thus he will be required to serve a period of imprisonment in relation to the offence for which the UK court has refused to order extradition.

I would be very grateful if you could consider the report and confirm how the speciality principle will be observed and provide an assurance that Mr Brodziak will not be required to serve any period of imprisonment in respect of any offence where the UK court has refused to order extradition."

52. The response dated 3 June 2013 from the requesting authority, having set out the individual sentences for the three offences and the cumulative sentence imposed, continued:

"The cumulative sentence is a consequence of offences in real concurrence. It shall be imposed in two stages. The first stage is to impose individual sentence for each of the offences in real concurrence. Based on the sentences, if these are of the same type or may be cumulated under the provisions of the law, in the second stage a cumulative sentence shall be imposed. Pursuant to art. 86 of the Penal Code the sentence shall fall within the following limits: from the highest of the individual sentences up to their aggregate amount.

Given the cumulative sentence imposed in the case in question, it should be noticed that the cumulative sentence of 1 year and 6 months has been imposed in line with the partial absorption principle. Even if the cumulative sentence were reversed, which in case of a final and non-appealable convicting sentence is impossible, the convict would have to serve 6 months custodial sentence for the offence punishable under art. 48(1) of the Act on the prevention of drug abuse and 1 year custodial sentence for the offence punishable under art. 48(1) [this is clearly an error for 'art. 46(1)'] of the Act on the prevention of drug abuse."

53. The submission made by Mr Clayton on behalf of Brodziak, and adopted by counsel for the other appellants, is that that evidence is sufficient to prove on the balance of probabilities that no effective specialty arrangements are in place to cover the situation in this case. There is no possibility of disaggregating the single sentence: the expert's opinion that the single penalty "cannot be dissolved" and that the judgment is "final and effective" is confirmed by the judicial authority's response that "in case of a final and non-appealable convicting sentence" a reversal of the cumulative sentence is "impossible". The result is that the requested person, if extradited to Poland, will have to serve a sentence that relates both to the offence or offences for which he has been extradited and to an offence or offences for which he has not been extradited. This problem is not met by the point made in the judicial authority's response that if the sentence were disaggregated the appellant would still have to serve 1 year for one of the extradition offences and 6 months for the other: the actual sentence of 1 year and 6 months took into account the 3 month sentence for the non-extraditable offence and reflected the discount given where there are multiple offences, so it cannot be said that the same sentence would apply to the two extradition offences alone. Mr Clayton also points out that the CPS's request to the judicial authority included a specific request for "an assurance that Mr Brodziak will not be required to serve any period of imprisonment in respect of any offence where the UK court has refused to order extradition", but no such assurance was provided.
54. This part of the case has caused us a degree of anxiety. The response of the judicial authority to the request for clarification is highly unsatisfactory. It does not provide the assurance specifically requested, nor does it point to a specific procedure for disaggregation or re-sentencing so as to ensure that the sentence served by an extradited person relates only to the offence or offences for which he has been extradited. We agree with the submission that, given the discount applied by the Polish courts when sentencing for multiple offences, it is no answer to say that the separate sentences for Brodziak's extradition offences come to the same total as the single sentence of 1 year 6 months actually imposed for those offences and the third, non-extradition offence. To require Brodziak to serve a sentence of 1 year 6 months would amount in practice to requiring him to serve a sentence that relates in part, albeit in small part, to a non-extradition offence. The same point of principle applies to the other appellants, where the separate sentences for the individual offences that were taken into account in setting the single sentence are not known.
55. We have come to the conclusion, however, that the evidence is not sufficiently compelling to displace the strong presumption that the Polish authorities will act in accordance with their international obligations in respect of speciality, and that the appellants have therefore failed to prove the absence of effective specialty arrangements. Two broad considerations, in particular, have led us to that conclusion.
56. First, as stated at [45] above, the relevant provisions of the Polish Criminal Procedure Code are entirely consistent on their face with the protection of specialty in Poland. The law itself is tolerably clear. What is not clear is how effect is or can be given to it in practice. The response from the judicial authority states that "a final and non-appealable convicting sentence" cannot be reversed, yet the expert opinion adduced on behalf of Brodziak' refers to the possibility of a judgment being quashed "in extraordinary proceedings". All of this, however, is a matter of internal procedure for the Polish courts. We are not persuaded that an extradited person will lack a remedy under Polish law to give effect to the requirements of the Criminal Procedure Code.
57. Secondly, and very importantly, there is no evidence before us of even a single case in which an extradited person has been required in practice to serve a sentence relating in whole or in part to an offence for which he was not extradited. Yet there has been a large number of extraditions to Poland from the United Kingdom (and there have no doubt been many others from other Member States) for the purpose of serving a sentence following conviction; and it must be relatively common, as the present appeals suggest, for such cases to involve a single sentence imposed for multiple offences that include non-extradition offences. If this had given rise to a real problem in practice as regards breach of specialty, we would expect evidence of specific cases to be available. We do not think that an adverse inference as to the absence of effective specialty protection should be drawn on the basis of the limited material of a general nature that has been placed before us.

Conclusion

58. We can now state very briefly our conclusions in relation to the individual appeals.
59. In the case of Brodziak, on the basis that the district judge's extradition order relates only to offences (ii) and (iii), which are both extradition offences, we dismiss the appeal.
60. We dismiss Madej's appeal, since both offences in respect of which extradition has been ordered are extradition offences.
61. We allow Marczuk's appeal in respect of offences (iii) and (v), which are non-extradition offences, and order his discharge in respect of those offences. In relation to the remaining offences, however, we dismiss the appeal.
62. We allow Dunec's appeal in respect of offence (iii), which is a non-extradition offence, and order his discharge in respect of that offence. In relation to the remaining offences, however, we dismiss the appeal.