United Kingdom Supreme Court

i)                   Both appellants submit that an EAW must contain particulars of any, or if not all then at least the most recent, domestic warrant issued to arrest a person wanted to serve a sentence of imprisonment.

ii)                Miss Clare Montgomery QC for Goluchowski submits that an EAW must also contain particulars evidencing a judicial decision activating a suspended sentence. Mr Mark Summers QC for Sas submits that a similar objection in fact applies to the EAW issued in respect of his client in case II K 498/03.

iii)              Both counsel submit that their submissions follow from the terms of the 2003 Act, whatever the position may be under European law under the terms of Council Framework Decision of 13 June 2002 (2002/584/JHA).

iv)              On point (ii), Miss Montgomery submits that her submissions also follow from the terms of the Framework Decision. Mr Summers was not inclined to go so far, but noted that there may be respects in which the United Kingdom Parliament introduced conditions for surrender more specific or protective than those contained in the Framework Decision.

“(2)     A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains -

(a)       the statement referred to in subsection (3) and the information referred to in subsection (4), or

(b)       the statement referred to in subsection (5) and the information referred to in subsection (6).”

This introduces an important distinction between EAWs issued in respect of (a) persons accused and wanted for prosecution (“accusation cases”) and (b) persons wanted after conviction either for sentencing or to serve a sentence of imprisonment or another form of detention imposed in respect of the offence (“conviction cases”).

“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.”

Although the term is not used in section 2, a person wanted under subsection (5) is a person “unlawfully at large” within a definition contained in section 68A (as inserted by section 42 of and paragraph 2 of Schedule 13 to the Police and Justice Act 2006 - “the 2006 Act”):

“68A. (1)       A person is alleged to be unlawfully at large after conviction of an offence if -

(a)       he is alleged to have been convicted of it, and

(b)       his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(2)       This section applies for the purposes of this Part, other than sections 14 and 63.”

“(4)     The information is -

(a)       particulars of the person’s identity;

(b)       particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;

(c)       particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

(d)       particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.”

“(6)     The information is -

(a)       particulars of the person’s identity;

(b)       particulars of the conviction;

(c)       particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;

(d)       particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(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.”

“1.1.    The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

“8.1.    The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a)       the identity and nationality of the requested person;

(b)       the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c)       evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2;

(d)       the nature and legal classification of the offence, particularly in respect of article 2;

(e)       a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f)        the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state;

(g)       if possible, other consequences of the offence.”

“(b)     Decision on which the warrant is based:

1.         Arrest warrant or judicial decision having the same effect: ……….

Type: ……….

2.         Enforceable judgment: ……….

……….

Reference: ……….”

“15.1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2.         If the executing judicial authority finds the information communicated by the issuing member state to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to articles 3 to 5 and article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in article 17.

3.         The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.”

“(1)     A Part 1 warrant may be received in evidence in proceedings under this Act.

(2)       Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(3)       A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(4)       A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies -

(a)       it purports to be signed by a judge, magistrate or officer of the territory;

(aa)     it purports to be certified, whether by seal or otherwise, by the Ministry or Department of the territory responsible for justice or for foreign affairs;

(b)       it purports to be authenticated by the oath or affirmation of a witness.

(5)       Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.”

The facts in more detail

(a) Goluchowski

“1. Type:

Decision of provisional detention: x

Judicial decision concerning application of other measures, which is deprivation of freedom, if yes, what: x

Enforceable judgment: x

1) Regional Court in Elblag, dated October 22, 2007

2) Regional Court in Elblag, dated April 8, 2008

2. File signature, for which decision was given [a better translation might be: “reference of decision given”]:

1) X K 986/07

2) II K 105/08”.

Under “Indications on the length of sentence”, there then appeared in relation to case I ten months and in relation to case II two years, with the further information that both sentences remained to be served in full.

15.             Mr Goluchowski was arrested under the EAW on 1 August 2014, and further information was supplied, presumably at request, by the Regional Court of Elblag through Interpol on 29 August 2014. It showed that the sentence imposed in case I on 22 October 2007 had been suspended for a probation period of four years, that on 13 June 2008 he was ordered to serve the sentence as a result of having committed a similar intentional offence during that probation period, that he was summonsed to attend the correction facility on 28 July 2008, but that on 17 June 2008 he filed a motion to defer the sentence, leading to a six month deferral until 19 February 2009, when he was required to attend the facility without further summons, that on 20 February 2009 he failed to do this, that on 10 March 2009 the police were ordered to bring him to the facility and on 30 June 2009 a search with a domestic arrest warrant was started.

(b) Sas

“1.       Type of decision:

Enforceable arrest warrant: n/a

Other enforceable judicial decision involving personal liberty deprivation: n/a

Enforceable judgment:

Judgment of April 24, 2006, by the District Court in Zagan, changed by the judgment of November 2, 2006, by the Circuit Court in Zielona Gora (ref no VII Ka 783/06).

2.         Decision reference:

II K 52/06, District Court in Zagan”

The length of sentence was given as eight months, all remaining to be served.

“were free when they testified before the first and second instance courts. Only after the appeal proceedings were finished and the judgment became final were they summonsed to report to their penitentiaries. … Marek Sas was to report to the detention facility … on January 25, 2007 …”

Analysis

Sas (EAW 1)

Goluchowski and Sas (EAW 3)

“It follows that the scheme of the Framework Decision and of Part 1 of the 2003 Act is that as a general rule the court of the executing state is bound to take the statements and information in the warrant at face value. The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct. It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong.”

“64.     Given that article 8.1(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid, failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant.”

“65      … before adopting such a decision [ie one refusing to give effect to the European arrest warrant], which, by its very nature, must remain the exception in the application of the surrender system established by the Framework Decision, as that system is based on the principles of mutual recognition and confidence, the executing judicial authority must, pursuant to article 15.2 of the Framework Decision, request the judicial authority of the issuing member state to furnish all necessary supplementary information as a matter of urgency to enable it to examine whether the fact that the European arrest warrant does not state whether there is a national arrest warrant may be explained either by the fact that no separate national warrant was issued prior to the issue of the European arrest warrant or that such a warrant exists but was not mentioned. …

67.       In the light of the foregoing considerations, the answer to Question 2 is that article 8.1(c) of the Framework Decision is to be interpreted as meaning that, where a European arrest warrant based on the existence of an ‘arrest warrant’ within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if, in the light of the information provided pursuant to article 15.2 of the Framework Decision and any other information available to it, that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant.”

Conclusions

LORD NEUBERGER: