Regional Court in Tarnow Poland v Wojciechowski [2014] EWHC 4162 (Admin)

Case No CO/4003/2014[2014] EWHC 4162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 4 November 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MRS JUSTICE COX DBE
Between
REGIONAL COURT IN TARNOW POLANDAppellantv
Between
WOJCIECHOWSKIRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordwave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms Mary Westcott (instructed by CPS Extradition Unit) appeared for AppellantMr Nicholas Hearn (instructed by Leslie Franks) appeared for Respondent
J U D G M E N T

LORD JUSTICE PITCHFORD:

On

[1]11 February 2014, a judge of the Regional Court of Tarnow in Poland issued a European Arrest Warrant ("EAW" or "warrant") in respect of the respondent to this appeal, Mariusz Julian Wojciechowski. It was certified by the National Crime Agency on 14 March 2014. It was a conviction warrant concerning aggregate sentences of two months, 18 days; and one year, two months, 17 days respectively which, as I understand it, makes one year, five months and four days or thereabouts in all.[2]The respondent challenged the warrant at Westminster Magistrates' Court and Deputy Senior District Judge Emma Arbuthnot ruled that the warrant was defective in that it failed to give the particulars required by section 2(6)(c) of the Extradition Act 2003. Accordingly, she ordered the discharge of the respondent. This is the requesting state's appeal against the district judge's decision.[3]To qualify as a EAW under Part 1 of the 2003 Act the warrant must specify the matters required by section 2. In a conviction case that information includes particulars of the requested person's identity, particulars of the conviction and the particulars of the sentence which may be imposed, or has been imposed, under the law of the category 1 territory.[4]The information required also includes by section 2(6)(c):
"particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence."
[5]The meaning of those words was considered by the Supreme Court in Louca v Germany [2009] UKSC4. It was held that the reference to "any other warrant" was not to a previously issued EAW, but to domestic arrest warrants or other decisions on which the EAW was founded as authority for its issue.[6]The words used in section 2(6)(c) were to be considered, having regard to the purpose to be identified in Article 8.1(c) of the Framework Decision which reads:
"(1)The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex: ... (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same affect, coming within the scope of Articles 1 and 2."
Article 1.1 of the Framework Decision provides:
"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."
[7]To similar effect, Toulson LJ (as he then was) in Artola v The 6th Section of the National High Court of Madrid, Spain [2013] EWHC 524 (Admin) said at paragraph 8 in relation to the equivalent pre-conviction subsection of the 2003 Act:
"8. The effect, therefore, of section 2(4)(b) is that the EAW must identify the jurisdictional fact which, under the law of the issuing state, provides a legal basis for issuing an EAW within the scope of Articles 1 and 2. By 'jurisdictional fact' I mean the legal process which domestic law recognises as a proper foundation for the issue of the EAW. To take a simple building analogy, the EAW must identify the foundation brickwork on which the EAW stand."
Toulson LJ, with whom Underhill J (as he then was) agreed, accepted the submission made, that the question for consideration when examining the validity of the EAW was: "... whether the totality of the information contained in the EAW satisfied the requirement of section 2(4)." (paragraph 23).[8]The terms of the warrant in the present case at section (b) were as follows:
"1. Decision type: - enforceable decision of executing the preventive detention: - enforceable judicial decision of executing another detention order, which, if so, is the following: - enforceable judgment issued by: (I) The aggregate judgment issued by the District Court in Brzesko on 27 July 2006, final as of 11 August 2006; The aggregate sentence was passed in place of the individual sentences imposed in the judgments issued by: "1"
The District Court in Brzesko of 19 May 2003, file reference number VK 108/03, final as of 27 May 2003; "2" The District Court in Brzesko of 20 August 2003, file reference number IIK 254/03, final as of 28 August 2003; (II) The judgment issued by the District Court in Brzesko of 10 December 2012, final as of 18 December 2012."[9]At section (c) of the EAW it is explained that in consequence of these decisions the remaining lengths of the sentence to be served in respect of the earlier "(I)" offences is two months and 18 days in prison; and in respect of the later "(II)" offences one year, two months and 17 days' imprisonment.[10]In a section of the warrant headed "Other circumstances relevant to the case", it is stated that the requested person is in custody in the United Kingdom. The sentence imposed was an aggregate sentence in substitution for an earlier sentence imposed for the earlier offending. The respondent had commenced serving the earlier sentence and had been released from custody under an early release scheme. However, that release was revoked for failure to comply with conditions. The respondent was then sentenced for the further offences and was due to serve the aggregate sentence determined by the court.[11]In a letter of 11 July 2014, the requesting state provided further information. The letter stated that the respondent's early release had taken place on 22 June 2011. It was revoked on 12 April 2013 on the ground that he had committed a further offence during the trial period. By letter of 10 May 2013, the requested person was required to report to prison on or by 20 May 2013. The respondent did not surrender.[12]On 29 May 2013 the police issued "a warrant" for his arrest. The key date on which the warrant was founded was 20 May 2013, the date on which the respondent failed to surrender. Before the EAW was issued a further warrant for the respondent's arrest was issued nationally, dated 10 July 2013.[13]It is common ground that the information provided by this letter cannot repair a defect in the warrant, a defect caused by an omission of the necessary jurisdictional information from the warrant itself. The district judge found that missing from the EAW was the essential information that two warrants been issued for the respondent's arrest in Poland on 29 May 2013 and 10 July 2013, which formed the jurisdictional basis for requiring the requested person to be returned to Poland. These were, the district judge found, warrants issued in the Category 1 territory in respect of the offences, and for that reason, wholly technical though it may be, the warrant was defective.[14]The requesting state argues that a warrant is not defective if a misstatement or omission is immaterial, provided that, in the words of Toulson LJ, the necessary material is contained within it. For example, in Zakrzewski v Regional Court of Lodz, Poland [2013] UKSC2, Lord Sumption said at paragraph 8 and following, that as a general rule the court in the executing state is bound to take the statements and information in the warrant at face value.[15]The validity of the warrant depends upon whether the prescribed particulars are stated not on whether the particulars stated are correct. There are safeguards to justify this position in domestic courts. First, there is mutual trust between states. So if particulars are rendered inaccurate by later events the requesting state can be trusted either to abandon the warrant or to provide further information in reassurance that the basis for extradition remains. Second, and exceptionally, materially inaccurate particulars may found an application for stay on the ground of abuse of process.[16]The facts in the Zakrzewski case are not on all fours with the present. The warrant was accurate at the time of issue. However, the extradition proceedings were adjourned while Mr Zakrzewski was prosecuted for a United Kingdom offence. In the meantime, he applied to the Polish court for his outstanding sentences to be aggregated. As a result, the term to be served was fixed at 22 months' imprisonment and not 45 months' imprisonment as had been stated in the warrant. The Supreme Court held that the warrant had been valid on issue and had not ceased to be valid simply because the term of imprisonment had since been aggregated. It still exceeded four months, which was the minimum required.[17]In the present case the criticism of the warrant is not that it was inaccurate, but that it was incomplete. Accordingly, the assistance which this court can derive from the decision in Zakrzewski is limited. Nonetheless, the statement of principle is important.[18]There is a mutual trust between states who are parties to the Framework Decision that the information provided in a European Arrest Warrant will be the information which provides the jurisdictional basis for the request.[19]Reliance is also placed by the requesting state upon the decision of Kenneth Parker J in Przybysz v Poland [2014] EWHC 1240 (Admin). In 2009 the requesting state had issued a warrant for the requested person's arrest for offences of robbery and burglary committed respectively in 1998 and 1999. Unstated in the EAW was the issue of an earlier 2001 domestic warrant in respect of the burglary. Kenneth Parker J rejected the argument that the EAW was invalid because it failed to identify the "other warrant" issued for the requested person's arrest in respect of the burglary.[20]Applying Louca, the judge held that the existence of the earlier domestic warrant was immaterial to the validity of the EAW. The earlier one had nothing to do with the justification for the issue of the EAW. The EAW was required only to give particulars necessary to found the justification for it.[21]Ms Westcott argues that the two domestic arrest warrants omitted from the EAW in the present case were issued after the enforceable judgment that formed the justification for the issue of the EAW. It was the court's judgment in December 2012 that ordered the respondent to serve his aggregated sentence. To the extent that the further information changed that position, it was only to confirm that the respondent remained at large despite the issue of domestic warrants for his arrest to enforce that judgment.[22]It is submitted that the warrants were merely the means by which the police sought to secure the defendant's surrender to custody.[23]Mr Hearn counters that in the letter providing further information it is expressly stated that the requested person "has been illegally at large since 20 May 2013". That, he submits, is the jurisdictional basis for the EAW; and that the two warrants issued in Poland for the arrest of the requested person were an essential part of the jurisdictional foundation for the EAW.[24]Since the EAW did not state the particulars required, that is to say particulars of "any other domestic warrant", the EAW is invalid. The breach may be technical, but a warrant that does not contain the necessary particulars cannot be improved or saved by the provision of extraneous information in circumstances such as the present.[25]In my judgment, it is perfectly clear from section B of the EAW that the aggregated sentences were imposed by the court on the dates specified in the warrant. They were not stated to be suspended. The EAW stated at section C the length of the remaining sentence to be served by the respondent in consequence of each judgment. In the "Other Circumstances" section the EAW explains the reason why the requested person was sought, namely to serve the sentence imposed.[26]I respectfully disagree with the conclusion of the deputy senior district judge in her conclusion that post-judgment warrants formed an essential part of the particulars to be provided under section 2(6)(c). They were issued in an attempt to secure the respondent's surrender to custody, but in my judgment were immaterial to the validity of the EAW which was founded, not upon the post-judgment domestic warrants, but upon the court's judgments imposing the respondent's aggregate sentence. The domestic warrants, I accept, were not to do with the offences but to do with securing the surrender of the respondent to serve the sentences imposed by the court in the enforceable judgments identified.[27]I therefore conclude that the information in the warrants did comply with the requirements of section 2(6) in the sense accepted and embraced by Toulson LJ at paragraph 23 of Artola. For those reasons, I would allow the appeal and remit the case to the judge with a direction that she should proceed in accordance with this judgment.

MRS JUSTICE COX: I agree.

Cited in 6 later judgments