Zakowski v Regional Court In Szczecin, Poland [2008] EWHC 1389 (Admin)

Case No CO/3647/2008

[2008] EWHC 1389 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Friday, 16 May 2008

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE MAURICE KAY

MR JUSTICE PENRY-DAVEY

Between

ZAKOWSKIAppellant

Between

REGIONAL COURT IN SZCZECIN, POLANDRespondent

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Miss Powell (instructed by Lawrence & Co) appeared for Appellant

Miss Mertens (instructed by Crown Prosecution Service) appeared for Respondent

J U D G M E N T

LORD JUSTICE MAURICE KAY:

Section

[1]2 of the Extradition Act 2003 defines a European Arrest Warrant (an EAW) within the meaning of Part I of the Act. In a conviction as opposed to an accusation case its provisions include the following at Section 2 (2):

"(2) A Part I warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory and which contains - ..... (b) the statement referred to in sub-section (5) and the information referred to in sub-section (6) ..... (5) 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. (6) The information is ..... ..... (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."

[2]The importance of these formal requirements has been stressed by Lord Hope of Craighead. In Office of the King's Prosecutor, Brussels v Cando Armas

[2005] UKHL 67

, he said at paragraph 28:

"28 ..... If the warrant does not conform to the requirements set out in Section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it."

In Dabas v High Court of Justice, Madrid

[2007] UKHL 6

, he said at paragraph 50:

"I wish to stress however that the judge must first be satisfied that the warrant with which he is dealing is Part I warrant within the meaning of Section 2 (2). A warrant which does not contain the statements referred to in that sub-section cannot be eked out by extraneous information. The requirements of Section 2 (2) are mandatory. If they are not met, the warrant is not a Part I warrant and the remaining provisions of that Part of the Act will not apply to it."

[3]Miss Hill submits that the passage that proscribes eking out by extraneous information is not part of the ratio in Dabas. However at the very least it is strongly persuasive authority, and no dissent to it is to be found in the other speeches. To my knowledge it has been followed in other cases in this court. I do not feel able to depart from it, nor would I wish to do so.

[4]It follows that the first task of this court on an appeal such as this is to consider whether an EAW, on its face, satisfies the requirements of Section 2. On the other hand, Section 2 and the Part of the Act in which it appears are not to be considered in domestic isolation. Their raison d'être is to give effect to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States.

[5]In Propino Case C105/03

[2006] QB 83

, Advocat General Kokut said that the object of creating an ever closer union between the people of Europe, to which Article 34.2 (b) of the EU Treaty refers, will not be achieved unless the Member States and institutions of the Union co-operate sincerely and in compliance with the law.

(b) She said at paragraph 36:

"In summary, it follows from Article 34.2 (b) and from the principle of loyalty to the Union that every Framework Decision requires their national courts to bring their interpretation of national laws, as far as possible, into conformity with the wording and purpose of the Framework Decision regardless of whether those laws were adopted before or after the Framework Decision so as to achieve the result envisaged by the Framework decision."

In paragraph 43 of its judgment, the Court of

Justice said:

"When applying national law the national court that is called on to interpret it must do so, as far as possible, in the light of the wording and purpose of the Framework Decision in order to obtain the result it pursues and thus comply with Article 34.2 (b)."

[6]Those passages were adopted by Lord Bingham of Cornhill in his speech in Dabas at paragraph 5 and by Lord Hope of Craighead in Pelecki v Circuit Court of Lecniza

[2008] UKHL 7

at paragraph 32.

[7]That is the legal landscape into which this appeal must be fitted.

[8]The appeal is a statutory appeal in which the appellant challenges the decision of District Judge Nicholas Evans made on 11 April 2008 to send him to Poland on an EAW in relation to his conviction for what can best be described as a robbery in the course of which a bicycle was stolen on 13 May 2000.

[9]I therefore turn to the EAW in this case. Under the rubric "European Arrest Warrant" it states:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

[10]The warrant is then set out using the paragraphs that have become familiar in the pro formas that are deployed. Box A contains information regarding the identity of the requested person. Box B, headed "Decision on which the warrant is based", states:

"1 Type of decision; Final decision of the District Court in Swinoujscie of 10 November 2000. 2 File Reference; 11K 261/OO."

[11]Underneath that appears Box C headed "Indications on the length of sentence." It states:

"1 Maximum length of the custodial sentence or detention order which may be imposed for the offence: 3 years' imprisonment. 2 Length of the custodial sentence or detention order imposed: 2 (two) years' imprisonment. 3 Remaining sentence to be served: whole."

A natural reading of that discloses that the appellant has been sentenced to a term of two years' imprisonment.

[12]Box E states that the warrant is issued in relation to one offence which is described in these terms:

"The person, on 13 May 2000 in Swinoujscie, threatened Marcin Zak with beating and breaking his legs in order to force him to give a bicycle ..... with the purpose to use it lawlessly and as a result of those threats Marcin Zak gave the abovementioned bicycle."

That part of the warrant refers to the relevant provision in the Polish Penal Code. The legal title for that offence in Polish law is "illegal duress in order to force certain behaviour."

[13]Finally the EAW - in Box F headed "Other circumstances relevant to the case" - states:

"The convict did not turn up to the detention institution in order to serve the sentence of imprisonment. He was not brought to the detention institution due to the fact that he is not staying at his address. An arrest warrant was sent after him. The police information indicates that he was arrested in Great Britain on 11.06.2005 in connection to drink driving. Limitation of penalty execution will lapse on 20 November 2015."

[14]On this appeal the case for the appellant is that the EAW does not satisfy the requirements of Section 2 (6) (b) or (c). Section 2 (6) (b)

[15]The statutory requirement is that the EAW must contain "particulars of the conviction". Miss Powell submits that it does not do so because the reference to "Final decision of the District Court ..... on 10 November 2000" does not enable one to know whether that decision was made on the occasion of conviction, of sentence, of an appeal or the issue of a domestic warrant.

[16]I do not accept this submission. Reading the EAW as a whole, but without the words "extraneous information", it is plain that(1) this is a conviction and not an accusation case because the EAW refers to the sentence imposed and later to the failure of "the convict" to "turn up to the detention institution in order to serve his sentence of imprisonment"; and

(2) the decision relied upon is "the final decision of the District Court of 10 November 2000".

[17]I would, without more, interpret all that as a reference to a failure to turn up to serve a sentence imposed on 10 November 2000, whether the conviction occurred on that date or on a previous occasion. The natural inference is that the person sentence on that occasion was being sentenced for an offence that is described later in the EAW and of which he had been convicted on or before 10 November 2000. In my judgment the EAW, read as a whole, provided proper "particulars of the conviction".

[18]Accordingly I find nothing in this ground of appeal.

[19]Although extraneous information is irrelevant to and has not impacted on that conclusion, it is pertinent to record that we know now that the sentence of two years' imprisonment was suspended and it was as a result of subsequent offences that the appellant was ordered to serve that sentence. The order activating the sentence was made on 20 August 2004 in the appellant's presence. Miss Powell concedes that the omission to refer expressly in the EAW to the suspension of the original sentence, to the subsequent offences or to the order of 20 August 2004, does not fall foul of the requirement to include "particulars of the conviction".

[20]I turn to the second ground of appeal. Section 2 (6) (c) Section 2 (6)(c) requires "particulars of any other warrant issued in the Category 1 territory for the person's arrest in respect of the offence." Miss Powell submits that the EAW was deficient in this respect. Although when relating "other circumstances relevant to the case" it stated that "an arrest warrant was sent after him" it did not make clear when or by which court the warrant had been issued. The district

judge held that the failure to include further particulars of that warrant was not fatal, and added:

"Section 2 (6) (c) was mostly a requirement for accusation cases."

If by that he meant that Section 2 (6) (c) has no application to conviction cases that would, in my view, be erroneous because the wording plainly does not limit the requirement to accusation cases.

[21]The submission on behalf of the appellant is that the reference in the EAW to an earlier warrant - "an arrest warrant was sent after him" - does not satisfy the requirement to include "particulars of any other warrant". It does not describe the type of warrant or by whom and when it was issued.

[22]On behalf of Poland, Miss Hill makes three contrary submissions. First, Section 2 (6) (c) refers only to another warrant "for the person's arrest in respect of the offence". In other words, the specific offence of robbery in this case. It would not apply to a warrant for a subsequent offence of, say, failing to surrender if that subsequent offence was not the offence for which extradition was sought. Secondly, given that it is the duty of a national court to construe its implementation legislation consistently with the provisions of the Framework Decision insofar as is possible to do so, it is significant that Article 8.1 (c) of the Framework Decision requires only "the following information", that is, "evidence of an enforceable judgment and arrest warrant or any other enforceable judicial decision having the same effect coming within the scope of Articles 1 and 2". It does not include the word "particulars" which is a domestic addition and should not therefore receive a strong construction. Thirdly, the warrant referred to in Section 6 (2) (c) means only another EAW and not a domestic warrant.

[23]In my judgment, there is force in each of these submissions. Reading Section 6 (2) (5) and (6) together, as one must, it is clear that the reference to "the offence" is a reference to the offence for which, amongst other things, the person is sought "for the purpose of serving a sentence of imprisonment". In this case that is the offence of robbery and not an offence of, say, failing to surrender. The warrant that was "sent after him" was, I infer from the context, a warrant to arrest him for failing to attend at the detention institution. Accordingly, the absence of further particulars of that does not contravene Section 6 (2) (c).

[24]Secondly, I consider it to be significant that the word "particulars" is not to be found in the Framework Decision. This disposes me to the conclusion that it should not be given a meaning which goes beyond "information" (the word that is common to both Article 8.1 and Section 6 (2)). To do so would give rise to a risk that the common European instrument was being given a different meaning in this country. That is an outcome which, on the authorities to which I have referred, we should strive to avoid.

[25]In the event, this view recedes in importance in the present case because of Miss Hill's third submission, namely that the reference to an arrest warrant in Section 6 (2) (c) is limited to an EAW. A similar submission was accepted by Lord Justice Dyson, albeit obiter, with whom Mr Justice Collins agreed, in Jaso, Lopez and Fernandez v Central Criminal Court No 2 Madrid

2007 EWHC 2983

Admin paragraph 26. His reasoning, which I respectfully consider to be correct, is that the arrest warrant referred to in Article 8.1 (c) falls to be construed by reference to the later words "within the scope of Articles 1 and 2". An arrest warrant "within the scope of Articles 1 and 2" is self-evidently an EAW and not a purely domestic warrant. It follows that Section 6 (2) (c) should be construed as referring only to other EAWs issued in respect of the offence. This would include, for example, a previous EAW which has been found to be defective.

[26]Miss Powell invites us to reject Lord Justice Dyson's construction partly because it would lead to there being no requirement of a reference to a domestic warrant which might be of crucial importance in determining whether and when a person came to be "unlawfully at large". However the concept of being "unlawfully at large" arises not in the context of the formal requirements of Section 6 but in the context of the bar to extradition by reason of the passage of time as provided by Section 14. That is a matter of evidence, not form.

[27]For all these reasons I have concluded that the decision of the district judge should be affirmed and the appeal dismissed.

[28]I should record that although the grounds of appeal in Miss Powell's skeleton argument sought to raise the issue of passage of time, she accepted at the outset of the hearing that (i)the district judge's finding of fact, namely that the appellant had been in court in August 2004 when the sentence was activated but had left the country without informing the court and (ii) other aspects of his evidence having been rejected, made a Section 14 appeal unsustainable.

MR JUSTICE PENRY-DAVEY: I agree.

[30]MISS POWELL: Thank you. There is an application for legal aid to be assessed.