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Judgments - Pilecki (Appellant) v Circuit Court of Legnica, Poland (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 7

on appeal from: [2007] EWCH 2080

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Pilecki (Appellant) v Circuit Court of Legnica, Poland (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice)

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

Counsel

Appellants:

Hugo Keith

Clair Dobbin

(Instructed by Sonn Macmillan Walker)

Respondents:

David Perry QC

Annabel Darlow

(Instructed by Crown Prosecution Service)

Hearing date:

16 JANUARY 2008

ON

WEDNESDAY 6 FEBRUARY 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Pilecki (Appellant) v Circuit Court of Legnica, Poland (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice)

[2007] UKHL 7

LORD BINGHAM OF CORNHILL

My Lords,

1.  For the reasons given by my noble and learned friend Lord Hope of Craighead, with which I agree, I would dismiss this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

2.  In April 2007 two European arrest warrants were issued by the Circuit Court of Legnica for the extradition of the appellant to Poland. The decisions on which the warrants were based were orders by Judge Bartlomiej Treter for the appellant to be arrested for the purpose of serving custodial sentences which had been imposed on him by the District Court in Lubin after his conviction for various offences and which had become final. The validity of each warrant falls to be determined under Part 1 of the Extradition Act 2003. This is the measure by which the United Kingdom has transposed into national law the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/548/JHA; OJ 2002 L 190, p1). Poland was designated as a category 1 territory pursuant to section 1 of the 2003 Act by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333) as amended by the Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004/1898).

3.  The warrants were in the form which the Framework Decision provides for a European arrest warrant. They were signed by Judge Treter as the issuing authority. They were accompanied by translations into English. As translated, they contain statements as to the amount of the penalty of deprivation of freedom that had been adjudged against the appellant and the amount of the penalty to be served. Article 2 of the Framework Decision provides that a European arrest warrant may be issued for sentences of at least four months. Section 2(6)(e) of the 2003 Act, as modified by art 2(2) and Schedule, para 1(1) of the Extradition Act 2003 (Multiple Offences) Order 2003 (SI 2003/3150) (“the Multiple Offences Order 2003”), provides that, if it is to satisfy the requirements of a Part 1 warrant where the person in respect of whom it is issued is alleged to be unlawfully at large after conviction of offences, the arrest warrant must contain particulars 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 offences. In each warrant the length of the custodial sentence imposed on the appellant for the offences was said to be more than four months, as was the remaining sentence to be served by him.

4.  On the face of the arrest warrants, the requirement which section 2(6)(e) of the 2003 Act sets out was satisfied. But on 22 June 2007 the Circuit Court of Legnica provided further information about the sentences which had been imposed on the appellant for the offences of which he had been convicted by the District Court in Lubin. This information showed that the situation was not as simple as it might have been thought to have been on reading the arrest warrants. The appellant had received a variety of sentences for each of the offences of which he had been convicted. Some of those sentences were for periods of less than four months and some of them were for longer periods. The court had aggregated those sentences for the purposes of its final judgment. In each case the aggregated sentence was more than four months. But the combined punishment was less than the sum of the individual sentences for each offence. It was not possible to say how much of the aggregated sentence was attributable to each offence.

5.  The short but important question on this appeal is whether, for the purposes of Part 1 of the 2003 Act, it has to be shown that the sentence that was imposed in respect of each offence, taken on its own, was at least four months or whether it is sufficient, where the person has been convicted of several offences and an aggregated sentence has been imposed on him, that the aggregated sentence was for four months or a greater period.

The facts

6.  The first of the two arrest warrants, referred to as European arrest warrant number 56/07, was issued on 18 April 2007. It referred to Case II K 486/05 and stated that it was based on a judgment of the District Court of Lubin of 26 July 2005. The appellant was said to have been convicted of three separate offences. First, he was said to have been concerned in the supply of marijuana to a minor on three occasions between November 2004 and December 2004. Secondly, he was said to have supplied marijuana to another minor on two occasions between October 2004 and December 2004. Thirdly he was said, acting together with the minors, to have stolen trade marks, or emblems, and other body parts from nineteen motor vehicles between October 2004 and January 2005. He had been sentenced to a total penalty of one year and two months deprivation of freedom for these offences, with a conditional stay of its execution for a period of probation of three years. On 19 April 2006, following a breach by the appellant of the conditions of his probation, the court ordered the execution of his conditionally stayed penalty, offset by two days detention which he had served when he was first taken into custody. In the result the amount of the penalty remaining to be served by him was one year, one month and twenty eight days deprivation of freedom.

7.  In the further information that was provided on 22 June 2007 it was stated that the appellant had been sentenced to a penalty of three months deprivation of freedom for the first offence, to a penalty of five months for the second offence and to a penalty of one year for the third. The court had then aggregated these penalties and imposed a combined punishment of one year and two months deprivation of freedom with a conditional stay of its execution for a probation period of three years. In this case the sentences that were judged appropriate for the second and third offences were in excess of four months. But the aggregated penalty of one year and two months deprivation of liberty was less than the total of the three sentences taken individually, which amounted to one year and eight months.

8.  The second arrest warrant, referred to as European arrest warrant number 60/07, was issued on 13 April 2007. It referred to Case II K 1439/05 and stated that it was based on a judgment of the District Court of Lubin of 22 February 2006. In this warrant the appellant was said to have been convicted of four separate offences. In the first case he was said, acting together with another named person, to have stolen a mobile phone on 3 September 2005 and to have demanded money from its owner in exchange for it the next day. The second, third and fourth offences were all said to have taken place on 3 September 2005. On each of these occasions he was said to have supplied marijuana to a minor, one of whom was the person with whom he was said to have been acting when he committed the first offence.

9.  In the further information that was provided on 22 June 2007 it was stated that the appellant had been sentenced to a penalty of six months deprivation of freedom for the first offence and to a penalty of three months deprivation of freedom for each of the other three offences. The court then aggregated these penalties and imposed a combined punishment of one year’s deprivation of freedom with a conditional stay of execution for a probation period of three years. In this case the sentence that was judged appropriate for the first offence was in excess of four months. But the aggregated penalty of one year’s deprivation of liberty was less than the total of the four sentences taken individually, which amounted to one year and three months.

10.  On 9 July 2007 District Judge Purdy made an order for the appellant’s extradition to Poland in respect of each of the two European arrest warrants. Each order was made with reference to the matters which he was required to determine by sections 10, 11 and 21 of the 2003 Act. It contained the following statements:

“I am satisfied that the offence specified in the Part 1 warrant is an extradition offence.

I am satisfied that the person’s extradition is not barred within the meaning of the Extradition Act 2003 and that his extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.”

11.  The appellant appealed to the High Court against these orders under section 26 of the 2003 Act. Two points were taken on the appeal. The first was that neither of the arrest warrants complied with the requirement in section 2(6)(e) of the 2003 Act that particulars must be given of the sentence that was imposed for the offence under the law of the category 1 territory. The second point, which is no longer in issue, was whether the District Judge was entitled to decide that the appellant had deliberately absented himself at his trial, as he was required to do by section 20(3). On 31 July 2007 the Divisional Court (Leveson LJ and Stanley Burnton J) held that in both respects the requirements of the 2003 Act had been satisfied and dismissed the appeal. The following question was certified as involving a point of general public importance:

“Does section 65(3)(c) of the Extradition Act 2003 require it to be shown that:

(a)  a final sentence of imprisonment of four months or greater was imposed in respect of each offence, taken on its own, that is referred to in the European arrest warrant, or is it sufficient to show that:

(b)  a sentence of four months or greater was imposed in respect of multiple offences, provided that such offences were the offences specified in the warrant and that the sentence arrived at by the court was an aggregated sentence reflecting the total criminality?”

12.  The appellant lodged his petition for leave to appeal to your Lordships on 4 September 2007 while he was being held on remand at Feltham Young Offenders Institution. His petition had been served on the Crown on 3 September 2007. On 12 September 2007 his solicitor was informed that the appellant had been removed to Poland. It is plain that this should not have happened. The appellant’s petition for leave was still pending. So the decision of the High Court had not yet become final for the purposes of section 36(5) of the 2003 Act. The Serious Organised Crime Agency was informed that that a point of law of general public importance had been certified and that the appellant had 14 days within which to lodge his petition. It appears however that it failed to check with the Judicial Office whether this step had been taken. The appellant would have been unable to explain to the officials that his petition for leave to appeal was pending as he does not speak English.

13.  Mr Hugo Keith for the appellant explained that proceedings for declaratory relief had been commenced in the High Court and that he would not seek any consequential orders from this House if the appeal was successful. The petitioner has been contacted in prison in Poland and has confirmed that he wishes his appeal to continue. So nothing more need be said about the unfortunate state of affairs that has arisen. I would nevertheless wish to make it clear that, where a point of law of general public importance has been certified under section 32(4) of the 2003 Act with the result that an application for leave to appeal to this House becomes competent, the proper procedure is for inquiries to be made with the Judicial Office as to what progress, if any, has been made with the application before it is concluded that a decision of the High Court has become final in terms of section 36(5).

The statutory provisions

14.  The appellant’s argument falls into two parts. As Mr Keith explained, they are sufficiently closely related to fall within the scope of the certified question. The first is that the information the warrants contained was insufficient to satisfy the requirements of section 2(6)(e) of the 2003 Act. If this argument is sound it would follow that neither warrant was a Part 1 warrant within the meaning of that section. The contents of the warrant are crucial to the system that Part 1 of the Act lays down: see Office of the King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 27. The Part 1 warrant is the initiating document, and if its requirements are not satisfied Part 1 of the Act will not apply to it. The second part of the argument relates to the definition of “extradition offence” in section 65(3). Section 10(3) provides that if the offences specified in the warrant are not extradition offences the judge must order the person’s discharge. The appellant submits that the definition is not satisfied in either case because it is not possible, when the additional information is taken into account, to determine whether the sentences that were imposed for any of the offences of which the appellant was convicted, taken on their own, were for a period of at least four months.

15.  The relevant sections of the 2003 Act must be read together with the modifications specified in the Schedule to the Multiple Offences Order 2003. Only two of them need to be mentioned in this case. First, para 1(1) of the Schedule provides:

“Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences)”

Secondly, para 2(2) provides that in subsection (2) of section 10 for the words “the offence” there are to be substituted the words “any of the offences.” Consequential modifications are made to subsections (3) and (4) of section 10. The following description of the sections adopts these modifications, as this is a multiple offence case. I shall italicise the modifications that I have adopted for ease of reference.

16.  Section 2(2) of the 2003 Act states that a Part 1 warrant which is issued by a judicial authority of a category 1 territory must satisfy two requirements. These requirements differ according to whether the warrant has been issued in an “accusation” case or in a “conviction” case. The warrants in this case fall into the latter category. The first requirement is that the warrant must contain the statement referred to in subsection (5). This is a statement that the person is alleged to be unlawfully at large after conviction of offences specified in the warrant by a court in the category 1 territory and that 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 offences or of serving a sentence of imprisonment imposed in respect of them. Secondly, it must contain the information referred to in subsection (6). The list that is set out in that subsection, as modified, includes the following:

“(e) particulars 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 offences.”

17.  Section 10, which deals with the initial stage of the extradition hearing, 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.”

18.  To answer the question whether any of the offences specified in the Part 1 warrant is an extradition offence the judge must refer to the definitions of this expression that are set out in sections 64 and 65 of the 2003 Act. Section 64 deals with cases where the person has not been sentenced for the offence - with what are commonly referred to as “accusation” cases. Section 65 deals with cases where the person has been sentenced - with what are commonly referred to as “conviction” cases. It is common ground that, as not all the offences referred to in either warrant fall within the European framework list, the relevant subsection for the purposes of this case is subsection (3) which, as modified, provides:

“The conduct also constitutes extradition offences in relation to the category 1 territory if these conditions are satisfied -

(a) the conduct occurs in the category 1 territory;

(b) the conduct would constitute offences under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.”

The issue

19.  The point to which Mr Keith directed attention is that section 10(2), as modified, requires the judge to decide whether “any of the offences” specified in the Part 1 warrant is an extradition offence. This, he said, made it necessary for the judge to take each of the offences which the warrant specified separately and to ask himself whether, in relation to each of them, the requirements of the definition in section 65(3) were satisfied. It was not open to him to consider as a whole the conduct which the warrant specified. The information that was available in this case showed that several of the offences of which the appellant had been convicted had been dealt with by way of penalties that failed to meet the 4 month threshold in section 65(3)(c). It also showed that the warrants themselves were defective because they did not give particulars of the sentences that had been imposed for each offence. He acknowledged that section 2(6)(e), as modified, required particulars to be given of “the sentence” imposed “in respect of the offences.” But it was not to be read as assuming that there would always be, in multiple offence cases, a single sentence in respect of all the conduct. Usually there would be a series of separate individual sentences in respect of each offence, as had happened in this case. In such a case, what had to be stated was the sentence for each offence.

20.  Delivering the judgment of the Divisional Court, Stanley Burnton J said in para 16 that there was nothing in the arrest warrants or in the additional information to indicate that any part of the aggregated sentences was determined by the court in Lubin to be attributable to any particular offence. There was, as the court stated, an aggregate punishment which covered all of the offences in question. It seemed to him, in the light of this information, that the particulars of the sentence imposed in respect of the offences in question were, in respect of one arrest warrant, one year and two months deprivation of freedom and, in respect of the other, one year’s deprivation of freedom. In para 17 he said that the conclusion that it was permissible to read section 2(6)(e) in this way was confirmed by the decision in Trepac v Presiding Judge of the County Court in Trencin, Slovak Republic [2006] EWHC 3346 (Admin). In that case the court in the category 1 territory had imposed a single sentence in respect of two offences which appeared to have been committed on the same day: attempted murder and carrying a concealed weapon. An argument that the European arrest warrant did not comply with the requirements of section 2(6)(e) because it did not contain an apportionment of the total sentence to each of the offences was rejected. Keene J said in para 16 of the court’s judgment that the form of the warrant did not require the specification of a separate sentence for each separate offence.

21.  Mr Keith recognised that there was a strong argument in Trepac v Presiding Judge of the County Court in Trencin, Slovak Republic for saying that what had been imposed in that case as a single overall sentence could not be disaggregated. But this was because it appeared that there had been a single course of conduct which made the imposition of such a sentence appropriate. He submitted that the facts in the present case were quite different. The decision in Trepac did not address the problem that it gave rise to. The conduct that the arrest warrants in this case referred to was made up of a series of individual offences, each of which had to satisfy the test of gravity which was built into section 65(3)(c). There was no doubt that each of the offences would have had to be considered separately had this been an accusation case. The appellant would have been entitled to speciality protection to prevent his being prosecuted for any of the offences which did not meet the twelve months gravity test in section 64(3)(c) in the event of his being extradited to face prosecution for any of them that did meet that test. This was the point of principle that was to be found in the wording of section 10(2) as modified. The approach to multiple offences in conviction cases should be informed by the same principle.

Discussion

22.  Mr Keith’s argument was attractively put, but I am unable to accept it. Once again, as in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, paras 26-27 and Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, para 25, it has to be said that the fact that the language of Part 1 of the 2003 Act does not match the requirements of the Framework Decision has given rise to difficulty. In this case the problem has been created by the highly compressed language of section 10(2) as modified by the Multiple Offences Order 2003.

23.  Part 1 of the 2003 Act was enacted to transpose the Framework Decision into national law. Article 34(2)(b) EU leaves the choice of form and methods to achieve the result at which the Framework Decision aims to Member States. The modifications to section 10 in para 2(2) of the Schedule to the Multiple Offences Order appears to have been framed on the assumption that, in order to give effect to the United Kingdom’s obligations under article 34(2)(b) EU as to the result to be achieved by the Framework Decision, it would be necessary in a multiple offence case for the judge to examine each of the offences separately in order to determine whether all or any of them was an extradition offence. This approach is appropriate in accusation cases. But in my opinion an examination of the Framework Decision shows that this is not necessarily so in conviction cases when the judge is considering whether the requirements of section 65(3)(c) as to the length of the sentence are satisfied.

24.  Article 1(1) of the Framework Decision makes it clear that a European arrest warrant may serve one or other of two purposes. It states:

“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.”

Article 1(2) defines the obligation to execute a European arrest warrant. It states:

“Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”

Article 2 defines the scope of the European arrest warrant. Article 2(1) states:

“A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.”

 
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